死刑案件量刑标准及量刑程序

The Sentencing Standards and Procedures of Capital cases

死刑是最严厉的刑罚,因此确保死刑的正确及平等适用至关重要。但是除死刑复核之外,我国法律对死刑量刑的程序保障几乎没有规定。学界的探讨也集中在死刑复核的行政式审查及死刑案件的三审制等宏观层面。但很少讨论死刑判决的标准和适用该标准的量刑程序。文章通过讨论美国的死刑量刑程序及我国《上海法院量刑指南——总则(试行)》和《上海法院量刑指南——毒品犯罪之一》关于死刑量刑的规定,认为我国死刑量刑程序主要包括:定罪和量刑程序分离;综合分析加重处罚情节和减轻处罚情节;比例审查。

The death penalty is the most serious punishment, so it is very important to ensure the death sentence is imposed correctly equally. But the sentencing procedures safeguards refer to death sentence are rarely prided in the law of our country except the dure for review of death sentence. Discussions in the academic world focus on such macroscopic aspects as the admirestrative examine of the review of death sentence and the third instance in capital cases. There are few discussions in respect to the standards of death sentence and the sentencing prccedures applied such standards. This article disoasses the American sentencing procedures far death sentence and the provisions concerning death sentence stipulated in Temporary General Rules of Sentencing Guidelines of Shanghai＇s Courts and the Sentencing Guidelines of Shanghai＇s Caourts about Crimes Involving Drugs, and then concludes that the sentencing procedures for death sentence of our country mainly include separation of sentence from conviction, comprehensive analysis of aggravating circumstances and mitigating circumstances, proportionality review.