死刑复核程序:一个仍未终结的问题——以死刑审判权与核准权的分设为视角

Judicial Review of Death Penalty Procedure:a Problem in Suspense——Separate Establishment of Death Penalty Adjudication and Death Penalty Review

死刑核准权归位于最高人民法院,这个本不应当出现的问题被解决后,死刑复核程序对拥有死刑复核权法院所裁判的死刑案件应否进行复核以及如何复核仍是一个需要亟待解决的问题。死刑复核程序作为"审判权"与"核准权"分设的特别程序始终未放逐这一立法信念,并以此为进路来设计死刑复核程序,以免死刑核准权被"审判权"架空影响死刑案件的质量。

The power of the death penalty review which shall, in compliance with the Amendment to the has recently been resumed by the Supreme People＇s Court, Organic Law of the PRC on the People＇s Court, conduct a unitary review of the death penalty cases nationwide. However, it still remains unsettled whether the death penalty cases directly adjudicated by the court which has the power to review death penalty cases shall be reviewed and how such cases shall be reviewed. The procedure for the death penalty review, which serves as a separately established procedure of special nature, has not been genuinely designed in strict accordance with the legislative belief that the power of death penalty review shall be segregated from the power of adjudication to avoid the latter＇s mere nominal existence, which is detrimental to the quality of death penalty cases.