Research on the Judicial Control of the Death Penalty

Author: Ma Songjian
Publisher:
Publish Date: 2006-12-01
Features: Whether it is substantive or procedural control of capital punishment adjudication, it cannot be separated from the guidance of capital punishment policies and capital punishment adjudication control principles. Based on the study of capital punishment policies and capital punishment adjudication control principles, this paper comprehensively elaborates on how to achieve strict control of capital punishment adjudication in specific judicial activities through two research paths: substantive control and procedural control. This book specifically includes four parts:
1. Capital Punishment Policy and Capital Punishment Adjudication Control. Generally speaking, there is a capital punishment policy, there will be a capital punishment legislation. However, since legislation and adjudication belong to two different fields, there is not necessarily a capital punishment policy that naturally leads to capital punishment adjudication. The judicial implementation of capital punishment policy is usually quite difficult. It must be admitted that China's capital punishment adjudication has long been criticized, with a high rate of conviction and execution of capital punishment, which is closely related to the fact that the policy of restricting capital punishment has not played or has not played a full role in guiding the process of capital punishment adjudication. China's contemporary capital punishment policy includes both the normative capital punishment policy and the actual capital punishment policy. In terms of the normative capital punishment policy, it mainly includes the following specific contents:
(1) Policy of Retaining Capital Punishment. The policy of retaining capital punishment is a criminal policy proposed by the Party and the State based on China's economic and political development status, crime situation, and traditional cultural values.
(2) Policy of Executing Few. China adheres to the policy of executing few in capital punishment, which is consistent with the general trend of the historical evolution of capital punishment in human society, that is, the number of capital punishments gradually decreases, and the actual application of capital punishment is gradually strictly limited. It also meets China's actual needs for punishing and preventing crime.
(3) Policy of Preventing Wrongful Execution. To a certain extent, the policy of preventing wrongful execution can also be included in the policy of executing few, but their emphasis is different: the former emphasizes the accuracy of applying capital punishment, while the latter emphasizes the quantitative characteristics of applying capital punishment. Generally speaking, only by strictly applying the conditions for applying capital punishment and preventing wrongful execution can one truly adhere to the policy of executing few; of course, only by adhering to the policy of executing few can one better implement the policy of preventing wrongful execution.
(4) Policy of Differential Treatment in the Application of Capital Punishment. The policy of differential treatment in the application of capital punishment mainly includes two aspects: special policies for applying capital punishment to criminals among ethnic minorities and overseas Chinese and their families. For criminals among ethnic minorities, it is further lenient under the premise of adhering to the policy of executing few in capital punishment, while for overseas Chinese and their families, a policy of basically not executing is adopted. Based on the current situation of retaining capital punishment, it can be considered that strictly limiting the application of capital punishment is China's basic capital punishment policy, while the policy of executing few, the policy of preventing wrongful execution, and the policy of differential treatment in the application of capital punishment are special capital punishment policies.
2. Principles of Capital Punishment Adjudication Control. One of the reasons why the application of capital punishment is not effectively controlled at present is that the handling of individual criminal cases is often case-by-case, lacking the guidance of general principles for the application of capital punishment. Examining the judicial process of applying capital punishment is not difficult to find that once the guidance of general principles for the application of capital punishment is left behind, the handling of individual cases will be limited to the crime constitutions stipulated in the specific provisions of the criminal law, without regard for the provisions of the general principles of the criminal law on the standards for applying capital punishment, without considering whether the crime committed by the defendant truly belongs to the category of "extremely serious crimes" and "must be sentenced to death," nor whether the application of capital punishment violates the spirit of criminal law restraint, whether it violates the purpose of punishment, or whether it can reflect the requirements of the fairness of punishment. In this way, if the behavior of the perpetrator meets the crime constitution and crime description requirements stipulated in a specific provision of the criminal law for capital punishment, it is possible that capital punishment will be applied. Therefore, it is necessary to establish general principles of capital punishment adjudication control to play the guiding role of capital punishment adjudication control principles in the application of capital punishment.
3. Substantive Control of Capital Punishment Adjudication. The substantive control of capital punishment adjudication is to limit the judicial application of capital punishment by comprehensively considering the substantive legal factors affecting the judgment of capital punishment. The process of judging capital punishment has a decisive meaning for the substantive control of capital punishment adjudication. According to the specific impact on the outcome of capital punishment judgment, the statutory circumstances of capital punishment judgment include two different situations: negative statutory circumstances for the application of capital punishment and positive statutory circumstances for the application of capital punishment; the discretionary circumstances of capital punishment judgment include negative discretionary circumstances and positive discretionary circumstances. The former refers to discretionary circumstances that affect the lenient punishment of capital punishment, while the latter refers to discretionary circumstances that affect the severe punishment of capital punishment. The substantive standard of capital punishment judgment refers to the conditions stipulated by the criminal law for the application of capital punishment, specifically including the positive standards and negative standards for the application of capital punishment, the standards for immediate execution of capital punishment, and the standards for suspended execution of capital punishment for two years. The positive standards for the application of capital punishment refer to the conditions that must be met according to the provisions of the criminal law for the application of capital punishment. According to the provisions of China's criminal law, the conditions for the application of capital punishment include both macroscopic general provisions in the general principles and specific content in the specific provisions. The former is the general and abstract requirement for the application of capital punishment, that is, the general standard for the application of capital punishment; the latter is the requirement for the application of capital punishment for specific crimes, which is the specific standard for the application of capital punishment.
4. Procedural Control of Capital Punishment Adjudication. Capital punishment adjudication control includes the substantive control and procedural control of capital punishment adjudication. The former refers to the correct application of the relevant provisions of the criminal substantive law on capital punishment to criminal elements under the guidance of China's strict capital punishment policies and capital punishment adjudication control principles, in order to minimize the actual application of capital punishment as much as possible. The latter refers to the procedural filtering of the judicial application of capital punishment under the guidance of China's strict capital punishment policies and capital punishment adjudication control principles, by strictly implementing the procedural provisions of the criminal procedural law on capital punishment cases, further reducing the actual application of capital punishment in an objective sense. It can be seen that whether it is the substantive control of capital punishment adjudication or the procedural control of capital punishment adjudication, they are consistent in their goals, that is, in the process of judicial application of capital punishment, they play their respective indispensable and important roles in different aspects of the judicial control of capital punishment. However, in China's criminal judicial activities, there has always been a traditional habit of emphasizing substance and neglecting procedure, which has led to the procedural control role of capital punishment adjudication far from being fully realized. In fact, compared with the substantive control of capital punishment adjudication, the procedural control of capital punishment adjudication has its own unique value. Because, under the current situation where China's criminal law still retains a large number of capital punishment provisions, it is undoubtedly quite difficult to expect that the judicial application of capital punishment can be maximally controlled solely by the application of criminal substantive law. If the procedural control role of capital punishment adjudication can be fully played, then the goal of maximizing the control of the judicial application of capital punishment can be effectively achieved.