死缓适用实质条件之理论构建——宽恕理论之提倡

Theory Construction of Essential Factors Applicable to Stay of Execution——Promoting Theory of Forgiveness

司法实践表明,目前我国死缓适用实质条件的理论学说并不能为死缓适用提供科学的理论指导,应在借鉴心理学中"宽恕理论"的基础上建构死缓适用实质条件的新理论。死缓适用的实质条件是:(1)罪恶深重尚未达到令人无法容忍的程度,即罪行的社会危害性刚刚达到或不过分地超过罪行极其严重的下限标准;(2)犯罪人有认罪、悔罪或者其他值得宽恕的情节,即罪犯的主观恶性、人身危险性不大。上述条件同时具备时,才能对罪该处死刑者适用死缓。

Judicial practice indicates the theory of essential factors of stay of execution couldn＇t provides a scientific instruction for applying stay of execution at present in China. Based on theory of forgiveness in psychology, this article has built a new theory of essential factors of stay of execution. The theory main- tains that the essential factors of stay of execution include： the offence is sinful but has not reached the degree unable to tolerate, in other words, the social harmfulness of the crime only reaches or no more than going beyond the lower limit of criminals that commit the most serious crime; the criminal has plead guilty or shows repentance or other circumstances worthy of forgiveness, in other word, the malice on the part of the criminal and personal danger of the criminal is not so serious. Only above-mentioned conditions are simultaneously satisfied, can it be suitable to apply stay of execution to the criminal who deserves to die.