Abstract: The death penalty is the most severe punishment and the most extreme means to adjust social relations. Today, many countries have abolished the death penalty system, but China still retains the death penalty. This paper describes the present situation of the death penalty system in China from the aspects of the emergence of the death penalty and its status in the laws of China, and thinks about whether China will continue to retain the death penalty in the future and how to reform the death penalty system.
[Keywords:] death penalty; Booking; abolish
The death penalty is an ancient punishment method, which has a deterrent effect on criminals, but it is different from other punishments. The death penalty deprives a person of his life. What is the current situation of the death penalty system in China? Because the current crime situation in China is very serious, China should keep the death penalty system, but it should be strictly restricted and gradually abolished.
First, the concept of the death penalty and its emergence in China
The concept of death penalty
The death penalty is a method to deprive criminals of their lives, including immediate execution and two-year suspension of execution. The content of the death penalty is to deprive criminals of their lives, so it is also called life imprisonment. The death penalty is the most severe punishment among all punishment methods, also known as capital punishment.
(B) The emergence of the death penalty in China
The appearance of the death penalty can be traced back to the era when the law came into being. There are records about the death penalty in the earliest punishment records. In the development of human history, the death penalty appeared as a substitute for primitive blood clan revenge and homomorphic revenge. In primitive society, conflicts between clans were solved by revenge of blood clan, which often brought clan scuffles and caused serious damage to society. After the country came into being, a penalty system, including the death penalty system, was established to put an end to unrestrained revenge. In the history of our country, the original punishment methods were Mohism, castration and monarch, and the death penalty (monarch) played an important role. After thousands of years of historical development, the death penalty has always existed.
Second, the death penalty system in China today
At present, more than 100 countries in the world have completely abolished the death penalty system, including European Union countries, China, Hong Kong and Macao. Many countries are abolishing the death penalty every year. Only the United States and Japan are left in the developed countries. However, in countries that still carry out the death penalty, only serious violent crimes such as murder are sentenced to death. China has the largest absolute number of retentions of the death penalty in the world. The following is an introduction to the death penalty system in China today:
The death penalty prescribed by law
Among the 4 13 crimes in China's criminal law (1997), 68 crimes of death penalty have been committed. The crime of endangering national security has seven charges; The crime of endangering public security has 14 counts; There are 15 charges for disturbing the order of socialist market economy; The crime of infringing citizens' personal rights and democratic rights has six charges; There are two crimes against property; The crime of disturbing social management order has eight charges; The crime of endangering national defense interests has two charges; The crime of corruption and bribery has two charges; There are 12 crimes of military personnel violating their duties. 1997 article 48 of the criminal law stipulates that "the death penalty is only applicable to criminals with extremely serious crimes."
(2) Characteristics of the application of the death penalty in China
The application of the death penalty in China's 1997 criminal law has the following characteristics.
1, the death penalty has a wide range of applications and many charges.
At present, the scope of application of death penalty in China is more than that in Criminal Law 1979. Nine of the ten chapters in the specific provisions of criminal law stipulate the death penalty more or less, and * * * involves 52 articles of criminal law, accounting for about15% of the provisions in the specific provisions of criminal law; There are also many crimes that stipulate the death penalty, accounting for about 17% of the total number of crimes in criminal law.
2. There are many selective crimes in the death penalty, but few absolute crimes in the death penalty.
In China's theoretical circles, there are three situations about the identification of selective crimes: one is behavioral selective crimes, such as the crime of producing and selling counterfeit drugs; Second, selective crimes, such as crime of trafficking in women and children; Third, the behavior and object are also selective crimes, such as theft, robbery, guns, ammunition, explosives and so on. There are too many selective crimes in the specific provisions of criminal law, but fewer absolute death penalty crimes.
There are many death sentences for economic crimes.
In the specific provisions of criminal law, there are 17 crimes of death penalty stipulated in the crime of disrupting the order of socialist market economy, ranking first among all kinds of crimes in the specific provisions of criminal law. If the broad economic crimes such as theft, corruption and bribery are added up, there are at least 20 crimes in the criminal law that apply the death penalty to economic crimes.
(3) The restrictive provisions on the application of the death penalty in China.
1. In terms of applicable conditions, Article 48 1 of China's 1997 Criminal Law stipulates: "The death penalty is only applicable to criminals with extremely serious crimes." The so-called "extremely serious crime" means that it is extremely harmful to society, and the objective harm and consequences of crime are particularly serious; Criminals are extremely subjective and vicious. According to China's 1997 Criminal Law, the death penalty for crimes endangering national security must be "especially harmful to the country and people, and the circumstances are particularly bad", and the death penalty for major criminal crimes must be "especially serious" or "cause serious consequences" or "especially serious harm".
2. From the object of application, Article 49 of China's 1997 Criminal Law stipulates: "A person who was under the age of 18 at the time of committing a crime is pregnant at the time of trial, and the death penalty is not applicable."
3. From the procedure of applying the death penalty, Article 20 of China's Criminal Procedure Law stipulates that death penalty cases can only be tried by people's courts at or above the intermediate level. Paragraph 2 of Article 48 of China's 1997 Criminal Law stipulates that the death penalty shall be submitted to the Supreme People's Court for approval, unless it is sentenced by the Supreme People's Court according to law.
4. Judging from the execution system of the death penalty, the second half of Article 48 1 of China's Criminal Law (1997) stipulates: "For criminals who should be sentenced to death, if they do not have to be executed immediately, they can be sentenced to death with a two-year suspension."
(four) the death penalty review procedure
1983, the Organic Law of the People's Court was amended, stipulating that the power to approve cases of immediate execution of partial death sentences can only be delegated to the higher people's court if it is "necessary". Since this regulation, the power to approve the death penalty has been continuously decentralized, and the scope of decentralization has become larger and larger, which seriously violates the regulation that "the power to approve cases of immediate execution of death penalty shall be exercised by the Supreme People's Court". It has caused serious disadvantages to the trial of death penalty cases.
Third, the reasons for retaining the death penalty system in China at this stage.
So far, China has retained the death penalty for three reasons:
(1) From the actual point of view of real life, the current level of social development in China is not enough to meet the conditions for abolishing the death penalty. At the Fourth Session of the Tenth National People's Congress, Sun Huapu, director of the General Office and spokesman, said on the afternoon of March 1 1 that on the one hand, the level of material civilization in China is not high enough; On the other hand, the concept of "killing for life" is deeply rooted in the hearts of the public, and the immediate abolition of the death penalty will not be recognized and supported by the broad masses of the people. Yes, at present, the social development in China is not mature enough, and the crime phenomenon is very serious. Without the death penalty, it is difficult to stop serious crimes. Retaining the death penalty is conducive to punishing these crimes, thus protecting the vital interests of the country and the people.
(2) Retaining the death penalty is conducive to the realization of the purpose of punishment in China. The purpose of executing the death penalty is to prevent crimes, protect people and maintain normal social order. Only by applying the death penalty to criminals with extremely serious crimes can we stop crimes and achieve the purpose of special prevention of punishment. At the same time, people who intend to commit extremely serious crimes are afraid to commit crimes, thus achieving a deterrent effect and achieving the purpose of general prevention and punishment.
(3) From the current values of our country, the execution of the death penalty can be supported by the general public and meet the needs of people's safety psychology. The general public's concept of the death penalty is still relatively backward. They often only emphasize the positive benefits of the death penalty and ignore its negative effects.
Four. Reflections on the Debate over the Preservation or Abolition of Death Penalty
The abolition of the death penalty has caused a heated debate in China and even around the world. Abolitionists believe that the abolition of the death penalty is the inevitable product of the theory of educational punishment, the practical basis for correcting the defects of the death penalty and the ultimate goal of the development of punishment; Existentialists of the death penalty believe that the death penalty is an inevitable requirement of ethical justice, which can achieve the effect of eliminating pests once and for all and has the greatest deterrent effect. Abolitionists and abolitionists have their own opinions. Although the death penalty system seems to violate the human rights of criminals on the surface, crimes in China are rampant at present. If the death penalty is not applied, it will be difficult to curb serious criminal offences. In view of the above reasons, the current situation in China is that the death penalty system must be maintained. However, there is no need to retain the death penalty system in China. If China meets the conditions for abolishing the death penalty in the future, it can completely abolish the death penalty, which requires the reform of the death penalty system in China.
Verb (abbreviation of verb) gives full play to the reform of the effectiveness of death penalty
In the future criminal law reform in China, we should give full play to the effectiveness of the death penalty reform, starting with the following points:
(1) Restrict the application of the death penalty.
As mentioned above, the restrictive provisions of China's criminal law on the death penalty are: "People who are under 18 years old at the time of committing a crime and women who are pregnant at the time of trial do not apply the death penalty." Judging from this limitation, the restrictive provisions of the criminal law on the applicable object are too narrow. If the death penalty cannot be applied to simple political prisoners and people who have reached the age of 70 at the time of committing crimes, it will better reflect the humanitarian spirit. If political prisoners simultaneously commit, participate in, plan or instigate other common criminal crimes, such as explosion and murder, the death penalty can be applied completely, but it is not necessary for simple political prisoners to apply the death penalty. Our country's law can stipulate that the death penalty is not applicable to people who are under 18 years old at the time of committing a crime. Can't a person over 70 years old at the time of committing a crime apply the death penalty? If the criminal law is reformed and people who have reached the age of 70 at the time of committing crimes are not sentenced to death, the general public should still be acceptable.
(2) Gradually reduce the number of death sentences.
1, reducing the provisions of the death penalty in the specific provisions of the criminal law.
China's death penalty legislation is not only applicable to violent crimes that seriously violate citizens' personal rights, but also to non-violent crimes whose object value is lower than human life. Such as smuggling, counterfeiting currency, financial fraud, and organizing other people's crimes. This kind of crime is a non-violent crime with the goal of simply grabbing economic benefits. Applying the death penalty to them is actually to measure people's lives by the economic value of property, and it is not necessary to apply the death penalty to such crimes. Non-violent crimes account for the majority of capital crimes. If the death penalty charges for non-violent crimes are abolished, the death penalty charges in the specific provisions of criminal law will be greatly reduced, which is also a breakthrough in abolishing the death penalty in China.
2. Cancel the crime of death penalty, which is rarely used in practice.
In some judicial practice, there are some rarely used death penalty charges, such as the crime of teaching criminal methods. If the crime of rarely using the death penalty in practice is abolished, it will have little impact on cracking down on crimes, but it will still play a great role in improving China's international reputation.
(3) Improve the procedure of death penalty review, and the Supreme People's Court will take back the right to approve death penalty cases according to law.
As mentioned above, the power of death penalty approval in China is very scattered, which has caused serious disadvantages to the trial of death penalty cases. The review of death penalty is also a topic of widespread concern in society. At the Fourth Session of the Tenth National People's Congress, there was a topic: "When will the right to review the death penalty be returned to the Supreme People's Court for unified exercise?" The Supreme People's Court's spokesperson also made the most response, saying that the Supreme Court is working in an all-round way from four aspects: ideological preparation, legal preparation, organizational personnel preparation and logistical support preparation. Judges are selected from all over the country. Once the preparatory work is ready, the Supreme People's Court will soon uniformly exercise the power to approve death penalty cases. If the Supreme People's Court withdraws the right to approve death penalty cases according to law, it will be of great significance to the reform of the effectiveness of death penalty in China.
Six, the use of certain countermeasures to create conditions for the abolition of the death penalty.
If the death penalty reform can be well implemented, the abolition of the death penalty will be just around the corner. China should actively create conditions, constantly overcome the expansion and abuse of the death penalty, constantly attach importance to the correction and guidance function of punishment, and enhance the accuracy of conviction. The abolition of the death penalty in China cannot be too active, and it can only be abolished under certain conditions. We can prepare for the abolition of the death penalty through certain countermeasures.
(a) Legal countermeasures
That is, by formulating and perfecting laws, regulations and judicial interpretations in a timely manner, laws can be followed and legal loopholes can be avoided. In terms of penalties, we can learn from a variety of penalties, such as life imprisonment and more than 20 years of imprisonment in the United States. Give full play to the role of property punishment and qualification punishment. In addition, strengthen the education of criminals in the process of punishment, and achieve the purpose of preventing and educating crimes through punishment.
(2) Social countermeasures
Create favorable social conditions for stabilizing the overall situation of society. For example, through certain countermeasures, enterprises reduce laid-off workers; In rural areas, deepen the adjustment of industrial structure and increase farmers' income; Strengthen and improve the social security system to ensure the lives of the poor and unemployed; Encourage rural surplus labor to work in cities and protect their legitimate rights and interests; Further strengthen the publicity of popularizing the law, so that the people know the law and abide by it. In this way, the overall situation of society will be stable and favorable conditions will be created for the abolition of the death penalty.
In a word, under the current situation in our country, a certain number of death penalty should be retained, which plays an inestimable role in cracking down on current serious criminal offences. But in the long run, China should reform the current death penalty system and actively create a stable social environment. With the gradual stability of social environment, the crime of death penalty in criminal law should be gradually reduced until it is abolished.
References:
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[3] Chen Minghua: Criminal Law, China University of Political Science and Law Press, 1999.
[4] Li Long and Wang Xigen: Jurisprudence, People's Court Press, 2003.
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