死刑适用标准的体系化构造

System of the Standard on the Application of the Death Penalty

当前我国死刑适用的主导思路存在严重缺陷。对刑法第48条第1款应采取以适用死缓为通例、以适用死刑立即执行为例外的解读方式;该款前句是划定"死刑圈"的标准,后句是进一步适用死刑立即执行的条件。对"罪行极其严重"应从行为刑法入手来界定,"罪行"的内容包括行为的主客观侧面,但不应包含人身危险性的内容;对"不是必须立即执行"的理解则采取行为人刑法的视角,着眼于行为人的人身危险性;有必要转换思路从正面界定"必须立即执行"。刑法第50条第2款的规范目的是减少死刑立即执行的适用;对该款规定的适用条件,应从人身危险性的角度来解读。适用死刑时有必要采取"普通死缓→死缓限制减刑→死刑立即执行"的思考顺序。在满足"死刑圈"标准的前提下,应以普通死缓为量刑基准,优先考虑其适用;是否适用死缓限制减刑或死刑立即执行,则进一步取决于对人身危险性的评估与测定。

Currently there are serious defects in the guiding ideology related to the application ot uae death penalty in China, including the misinterpretation of Article 48 Paragraph 1 of the Chinese Criminal Law. A more reasonable reading of this provision should be that, to take the application of the death penalty with a two-year suspension as a rule and the application of the death penalty with immediate execution as an exception. Its first sentence sets a threshold for the application of the death penalty while its second sentence provides for further conditions for the application of the death penalty with immediate execution. ＂The most serious crime＂ in this provision should be understood from the perspective of act-oriented criminal law, and ＂crime＂ covers only the objective and subjective elements of an offense, but not the element of personal dangerousness. Meanwhile, the expression ＂immediate execution is not essential＂ needs to be understood from the perspective of actor-orient criminal law and focus on the defendant＇ s personal dangerousness. Especially, more importance should be attached to the meaning of ＂the necessity for immediate execution＂ and the term needs to be defined from a positive point of view. The normative objective of Article 50 Paragraph 2 is to restrict the use of the death penalty with immediate execution, and the conditions for its application should be interpreted from the perspective of personal dangerousness. In the application of the death penalty, the follow order of consideration should be adopted： ordinary death penalty with a two-years suspension→ death penalty with a two-years suspension but with restriction on commutation→death penalty with immediate execution.