死缓制度起源新论

A New Theory on the Origin of Suspension of Execution for Death Sentence

死缓是我国刑法典明文规定的死刑制度的组成部分。关于死缓起源问题长期存在着争议。争议的根源在于对死缓制度的思想渊源与法律制度渊源的认识分歧。从历史发展来看,死缓制度的思想渊源可以追溯到封建时期的"明德慎刑"思想,而制度渊源也可以追溯到明清时期的秋审"监候"制度。但是,鉴于死缓作为一种法律制度,是由中华人民共和国刑法加以规定的,应当认为死缓制度是新中国首创。现有史料多将新中国死缓制度的起源认定为1951年5月之后,但有档案资料证明,山东省某些地方法院适用死缓的时间要更早。因此,死缓制度的起源时间应该提前。

The system of suspension of execution for death sentence is stated by Chinese Criminal Law. The problem about the origin of suspension of execution for death sentence has been discussed all the time. There are many different opinions. It is important to differentiate the origin of ideology from the origin of legal system. Legal system of suspension of execution for death sentence is created by the People＇ s Republic of China. Many documents recorded that the origin of suspension of execution for death sentence was after May 1951. But some documents proved that the time when legal system of suspension of execution for death sentence was applied by local court in Shandong Province was earlier before May 1951.