中国语境下限制死刑非常规路径之探讨——以立功为切入点

Study on Non-conventional Route of Restricting Death Penalty In China——From the Point of Meritorious Performance View

死刑存废受制于一个国家的价值观、社会形势、人民情感等因素,与人权保障并无直接关系。从长远看废除死刑是历史的必然,但立即废除死刑对中国来说缺乏现实基础,走限制死刑的路径是刑法学界的共识。传统限制死刑的路径主要包括缩减罪名、替代措施、明确死刑标准等几种,但它们只是停留在理论论证阶段,付诸实践尚需时日。而作为法定从轻量刑情节的立功制度则不同,成为司法实践中限制死刑的非常规路径,立功之所以能够分担死刑限制的责任在于人性的弱点、功利主义与宽严相济刑事政策的影响。

Existing and abolishing death penalty is subject to the country＇s value orientation, social situation and people＇s feelings, which is not directly related to human rights. Abolishing death penalty was a historic necessity in the long term. But death penalty＇s immediate application lacks reality basis in China. It is the common sense in criminal law field to take the way of restricting death penalty. Traditional mutes include reducing alleged crimes, alternative measures to death penalty and clear standard of death penalty. But all of them stop in the stage of theoretical arguments and need a long time to put into practice. As a lighter punishment, meritorious performance becomes a non-conventional route to restrict death actually. The reason for sharing responsibility to restrict death was that meritorious performance is affected with human weakness, utilitarianism and criminal policy of temper justice with mercy.