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 in the administration of capital punishment, it cannot be separated from the guidance of capital punishment policies and the principles of judicial control over capital punishment. Based on the study of capital punishment policies and the principles of judicial control over capital punishment, this paper comprehensively elaborates on how to achieve strict judicial control over capital punishment in specific judicial activities through two research paths: substantive control and procedural control. This book specifically includes four parts:
First, Capital Punishment Policies and Judicial Control over Capital Punishment. Generally speaking, what kind of capital punishment policy exists will determine what kind of capital punishment legislation exists. However, since legislation and adjudication belong to two different fields, what kind of capital punishment policy exists does not naturally lead to what kind of capital punishment adjudication. The judicial implementation of capital punishment policies often faces considerable difficulties. It must be acknowledged that China's current situation in the administration of capital punishment is widely criticized, with high rates 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 fully played its guiding role in the judicial process of capital punishment in China. China's contemporary capital punishment policies include 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) The 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, crime trends, and traditional cultural values.
(2) The policy of executing fewer people. China's policy of executing fewer people in capital punishment is not only consistent with the general trend of the historical evolution of capital punishment in human society, which is the gradual reduction in the number of people sentenced to death and the gradual strict limitation on the actual application of capital punishment, but also meets China's actual needs for punishing and preventing crime.
(3) The policy of preventing wrongful execution. To a certain extent, the policy of preventing wrongful execution can also be included within the policy of executing fewer people, but their focus 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 fewer people; of course, only by adhering to the policy of executing fewer people can one better implement the policy of preventing wrongful execution.
(4) The 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 returned overseas Chinese and their families. For criminals among ethnic minorities, it is an further leniency under the premise of adhering to the policy of executing fewer people in capital punishment, while for returned overseas Chinese and their families, it is a policy of basically not executing them. 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 fewer people, the policy of preventing wrongful execution, and the policy of differential treatment in the application of capital punishment are specialized capital punishment policies.
Second, Principles of Judicial Control over Capital Punishment. One reason 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 abandoned, the handling of individual cases will be limited to the crime constitutions stipulated in the specific provisions of the criminal law, ignoring the provisions of the general principles of the criminal law on the standards for applying capital punishment, failing to consider whether the crime committed by the defendant truly belongs to the category of "extremely serious crimes" and "must be sentenced to death," nor considering whether the application of capital punishment violates the spirit of judicial restraint in the criminal law, whether it violates the purpose of punishment, or whether it can reflect the requirements of fairness in punishment. In this way, if the behavior of the perpetrator meets the crime constitution and circumstances requirements stipulated by a specific provision of the criminal law for capital punishment, it is possible that capital punishment will be applied to them. Therefore, it is necessary to establish general principles for judicial control over capital punishment and give full play to the guiding role of the principles of judicial control over capital punishment in the application of capital punishment.
Third, Substantive Control of Capital Punishment Adjudication. Substantive control of capital punishment adjudication refers to limiting the judicial application of capital punishment by comprehensively considering the substantive legal factors that affect the discretion in sentencing capital punishment. The process of sentencing capital punishment is of final significance to the realization of substantive control over capital punishment adjudication. According to the specific impact on the outcome of sentencing capital punishment, the statutory circumstances in sentencing capital punishment include two different situations: negative statutory circumstances for applying capital punishment and positive statutory circumstances for applying capital punishment; discretionary circumstances in sentencing capital punishment include negative discretionary circumstances and positive discretionary circumstances. The former refers to discretionary circumstances that affect the lenient punishment in sentencing capital punishment, while the latter refers to discretionary circumstances that affect the severe punishment in sentencing capital punishment. The substantive standard for sentencing capital punishment refers to the conditions for applying capital punishment stipulated by the criminal law, specifically including the positive and negative standards for applying capital punishment, the standards for immediate execution of capital punishment, and the standards for suspended execution of capital punishment for two years. The positive standard for applying capital punishment refers to the conditions that must be met according to the provisions of the criminal law for applying capital punishment. According to the provisions of the criminal law of China, the conditions for applying capital punishment include both macro-level general provisions in the general principles and specific content in the specific provisions. The former is the general and abstract requirement for the standard of applying capital punishment, that is, the general standard for applying capital punishment; the latter is the requirement for applying capital punishment to specific crimes, which is the specific standard for applying capital punishment.
Fourth, Procedural Control of Capital Punishment Adjudication. Judicial control over capital punishment includes both substantive control and procedural control of capital punishment adjudication. The former refers to, under the guidance of China's strict policies on capital punishment and the principles of judicial control over capital punishment, correctly applying the relevant provisions of the criminal law of the facts to the criminals to the greatest extent possible to reduce the actual application of capital punishment; the latter refers to, under the guidance of China's strict policies on capital punishment and the principles of judicial control over capital punishment, strictly implementing the procedural provisions of the criminal procedural law regarding capital punishment cases to filter the judicial application of capital punishment procedurally, and further reducing the actual application of capital punishment objectively. It can be seen that whether it is substantive control or 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 judicial control over capital punishment. However, in China's criminal judicial activities, there has always been a traditional habit of emphasizing substance over procedure, which has led to the procedural control role of capital punishment adjudication far from being fully realized. In fact, compared with substantive control of capital punishment adjudication, 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 difficult to expect that the judicial application of capital punishment can be effectively controlled to the greatest extent possible solely through the application of substantive criminal law. If the procedural control role of capital punishment adjudication can be fully brought into play, then the goal of achieving the greatest possible control over the judicial application of capital punishment can be effectively and realistically achieved.