论中国传统死刑观的负价值

The Negative Influence of the Traditional Chinese Culture on Death Penalty

中国传统死刑观具有三方面特征:一是笃信死刑的正当性;二是极力追求死刑的威慑效果;三是容忍过度发挥死刑的复仇功能。在传统死刑观的影响下,国民崇尚死刑,依赖死刑,动辄希望判处罪犯死刑,对死刑适用的正当根据和必要限度缺乏足够的认识。传统死刑观阻碍中国死刑立法的现代化和现代死刑适用标准的确立,导致法官和政治决策层对慎重适用死刑持抵触态度,并且可能使合法、正当的死刑案件裁判面临来自社会舆论非正常压力,应当扬弃。

There exist three kinds of characteristics in the traditional culture of death penalty in China. The first is the sincere belief in the justifiability of death penalty. The second is the over- pursuit of the deterrent function of death penalty. And the third is the toleration to the over-pursuit of the retributive function of death penalty. Under the influence of the traditional culture of death penalty, the Chinese people worship death penalty, frequently require the court to sentence the criminal to death, and do not care for the basis for, and the necessary limitation of, the application of death penalty. The present author proposes that such a tradition would hinder the modernization of the Chinese legislation concerning death penalty and the establishment of modern standards concerning the application of death penalty. It also makes judges and government officers refuse to apply death sentence cautiously, which would hence cause the legal and just decision of capital case to involve in the improper intervention which comes from public opinions. Therefore, the traditional Chinese culture of death penalty should be sublated.