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Death penalty review system and China /theory/article _ list. ASP? id = 3248 & ampl_class= 1

Interpretation of the death penalty review system in the early Song Dynasty

[Date: March 2007-12] Source: Author: Zhou Mingxue [font: large, medium and small]

The 24th Session of the 10th the NPC Standing Committee, which closed in Beijing on June 5,438+1 October 3 1 2006, decided that the Supreme People's Court would withdraw its right to approve the death penalty from June 5,438+1October 2007. Shortly after the founding of New China, China's death penalty cases have been decided or approved by the Supreme People's Court. However, since the 1980s, the power to approve death penalty cases in China has been authorized seven times, and it was exercised by the higher people's courts of provinces (autonomous regions and municipalities directly under the Central Government) from the former the Supreme People's Court. With the restoration of the right of death penalty review in the Supreme People's Court, death penalty review has once again become a hot topic in the field of criminal justice and teaching research in China.

The high school history textbook published by People's Education Publishing House only introduces the practice of China's death penalty review system in the early Northern Song Dynasty, and there is only one sentence, that is, "the death penalty must be reported to the central government for review and approval", which is unclear. This sentence is easily misunderstood. First, it is believed that the practice of death penalty review in ancient China began in the early Northern Song Dynasty. Second, it is considered that the death penalty review in the early Northern Song Dynasty is similar to the death penalty review today, which is a review before the execution of the death penalty and one of the measures to strengthen the centralization of absolutism.

The author looked up relevant information and found that the above two views are wrong. First, the practice of death penalty review in China has a long history, not only in the early Northern Song Dynasty. Generally speaking, it was established in the Northern Wei Dynasty, shaped in the Sui and Tang Dynasties and perfected in the Ming and Qing Dynasties. Only in different dynasties, the organs and procedures responsible for the final examination and approval were slightly different. For example, in the Tang Dynasty, a three-division system was adopted to judge cases (the three-division system refers to the three major judicial organs of the Central Dali Temple, the Ministry of Punishment and Yushitai). In case of death penalty cases and major difficult cases, the emperor's imperial edict sent assistant minister of punishments Dali Qing and Cheng * * * in the imperial edict for review, which was called the Big Three Yang Ambassador. For example, the three-year imperial edict sent Yuan Wailang, imperial edict and Dali officials to review, which is called the three-year ambassador), and the nine-year proposal punishment system (officials with four or more titles in Chinese books and servants in the lower and upper provinces, left and right) shows that the death penalty review system in the Tang Dynasty is quite complete and strict, which is also an important feature of the judicial system in the Tang Dynasty.

Secondly, the practice of death penalty review in the early Northern Song Dynasty is unique, which is different from that in the Tang Dynasty and the middle and late Northern Song Dynasty. Its main manifestations are: handing over the execution power of death penalty to local authorities without reporting to the central authorities for approval. Only after the execution of the death penalty is completed will the Central Criminal Department apply for an ex post facto review according to the national ten-day injunction. This is different from the Tang Dynasty, and it is also different from the meaning that "the death penalty must be submitted to the central government for review and approval" expressed in textbooks, which is completely opposite to the review before the execution of the death penalty. In other words, in the early Northern Song Dynasty, the state had the final executive power, unlike the textbook that "the death penalty must be reported to the central government for examination and approval", and there was no need to apply to the Ministry of Punishment for review. The main reason is that in the early Northern Song Dynasty, the rulers were committed to strengthening centralization and eliminating local separatist forces, so they gave the prefectures and counties the greatest power as much as possible, which improved the status of prefectures and counties that had been mastered by the emperor himself, which was equivalent to weakening the separatist forces in Fangzhen. This situation did not change until the middle of the Northern Song Dynasty. After the mid-Northern Song Dynasty, death penalty cases can only be executed after detailed approval by the Criminal Procedure Department, and state-level organs no longer enjoy the final execution power, and gradually formed a system. This practice has been used until the Southern Song Dynasty. This is because, by the middle of the Northern Song Dynasty, centralization was consolidated, and the forces in towns were no longer threatening. This is not conducive to centralization, but will lead to excessive punishment. Therefore, some scholars have summarized the history of the death penalty review system in the Northern Song Dynasty as follows: Before the Yuanfeng Reform (the official system reform in Yuanfeng period in Song Shenzong), the state had the final executive power and did not need to apply to the Ministry of Punishment for review. After the reform of Yuanfeng, the control has been strengthened, and it must be reviewed by the Criminal Procedure Department before it can be implemented.

Due to the special social background, the death penalty review system in the early Northern Song Dynasty was quite distinctive and became a special case in the history of the ancient death penalty review system in China. Generally speaking, except for the early Northern Song Dynasty, the laws of all dynasties since the Northern Wei Dynasty in ancient China stipulated that cases of death penalty, whether executed immediately or suspended, must be reported to the central judicial organs for review and then approved by the supreme ruler. In the early Northern Song Dynasty, the review of death penalty did not need to be reported to the central authorities for approval, and it took a long historical process to strengthen centralization in the Northern Song Dynasty. It is obviously inaccurate and inappropriate to introduce "death penalty must be reported to the central authorities for approval" in the middle and late Northern Song Dynasty as a measure to strengthen centralization in the early Northern Song Dynasty. Fortunately, the new curriculum concept advocates teaching with textbooks, not teaching textbooks. From textbooks to lesson plans, from lesson plans to teaching, teachers can be "developers and builders of courses". Therefore, the author believes that the above two misunderstandings, especially the second misunderstanding, should be corrected in time in the teaching process.

References:

(1) After the founding of New China, the Party and the state started from the national conditions of China and implemented the policy of "retaining the death penalty and strictly controlling it". 1954 promulgated the Organic Law of People's Courts, which stipulates that death penalty cases shall be approved by the Supreme People's Court and the Higher People's Court. 1957 the fourth session of the first national people's congress made a resolution that all death penalty cases will be judged or approved by the Supreme People's Court in the future. From 1958 to 1966, all death penalty cases must be reported to the Supreme People's Court for approval. During the "Cultural Revolution", the people's courts suffered a full-scale impact. Since most judges in the Supreme People's Court were sent to the May 7th Cadre School, only a few stayed, and the death penalty approval system existed in name only. 1In July, 979, the Second Session of the Fifth National People's Congress passed the Criminal Law and the Criminal Procedure Law, and revised the Organic Law of the People's Court, stipulating that death penalty cases should be reported to the Supreme People's Court for approval except those sentenced by the Supreme People's Court. See Chen Yonghui's Historical Mission: People's Trust-A Review of the Supreme People's Court's Unified Exercise of the Right to Approve Death Penalty, People's Court Journal, No.65438, 2006+February 29th.

② ③ ④ ⑧ Gong: Four characteristics of the ancient death penalty review procedure in China, Procuratorial Daily, June 65438+1October 65438+April 2005.

⑤ Editorial Department of Law Textbooks: History of Chinese Legal System, Mass Publishing House, 1988, p. 23 1.

⑥ Wang Yunhai, editor-in-chief: Judicial System in Song Dynasty, Henan University Press, 1992, p. 352.

⑦ Wang Yunhai, editor-in-chief: Judicial System in Song Dynasty, Henan University Press, 1992, p. 354.

(Originally published in Tianjin History Teaching, No.3, 2007)

The following are the teacher's handouts for your reference:

Judicial system in Northern Song Dynasty (960- 1 127)

1, judicial organ

Under the system of Song and Tang Dynasties, under the emperor, Dali Temple, Ministry of Punishment and Yushitai were set up in the central government, and the central judicial power was separated. T04-59D

(1) trial court

○ Taizu established 1 to strengthen the control of the central judicial organs;

○2 Cases reported by local authorities must be submitted to the trial court for the record, then transferred to Dali Temple and the punishments for review, and then discussed in detail by the trial court and ruled by the emperor.

○3 During the reign of Zongshen, the trial court was abolished, and the original functions of the Ministry of Punishment and Dali Temple were restored (in fact, they were not fully restored and the counseling books were not accurate).

(2) Punishment

○ 1 Responsible for the audit of national death penalty cases detailed in Dali Temple, official reply and revenge.

○2 After that, Cao was divided into two factions, Zuo Cao was responsible for the review of death penalty cases and you Cao was responsible for the review of official punishment cases. Its functions have been expanded to deal with criminal law, prison proceedings, admonition, forgiveness, reform and other matters.

(3) Dali Temple

○ 1 At the beginning of the Northern Song Dynasty, Dali Temple was reduced to a cautious punishment organ, which was responsible for trying local cases, and there was no prison facility inside, regardless of interrogating prisoners.

○2 Dali Temple Prison was established in Zongshen period and was responsible for the trial of criminal cases in the capital.

(4) Yushitai not only has the power of judicial supervision, but also has the function of trying major cases.

(5) Local judicial organs

○ 1 still implement the integrated system of judicial administration;

However, since Emperor Taizong (Zhao Kuangyi) came to power, local judicial supervision has been strengthened, and prison departments have been set up above counties, which are the judicial organs of the central government in various places, regularly inspecting counties, supervising trials and recording prisoners' situation in detail. Local officials can make a judgment immediately when trying illegal cases; In the worst case, report to the emperor for a ruling.

2. Litigation system

(1) difference survey

○ 1 In the lawsuit, the prisoner denied the confession and called it "different";

○2 If the case is serious, it will be retried by another judge or another judicial organ, which is called "another investigation".

(2) Evidence inspection The Song Dynasty paid attention to evidence, and the original defendant had the burden of proof and attached importance to on-site inspection.