反思与超越:蜕变中的死刑复核程序——以对生命的尊重和对权利的保障为视角

Rethinking and Transcending the Developing Death Penalty Review Procedure——From the perspective of respecting erienced three phases of promoting cautious punishment and benevolence: the historic for life and protecting rights

死刑复核程序古已有之,追溯历史沿革可以发现,其经历了慎刑推仁的表征——死刑复核程序的历史存在、刑罚功利的工具——死刑复核程序的近代衍变、生命价值的珍重——死刑复核程序的终极目的三个阶段。现今我们虽基于对生命的尊重和权利的保障来构建死刑复核程序,但实然程序设计仍存在诸多缺陷:复核程序封闭性特征明显;被告人程序保障阙如;缺乏行之有效的法律监督;复核结论的形成缺乏合理性。究其原因,三个因素致使死刑复核程序的应然价值追求与实然制度设计相去甚远:刑罚功利性思维造成死刑复核程序只是维护统治的工具;几千年传统观念的积淀使我们仍然在有意识或无意识中受惯性思维的影响重实体轻程序;现代人文精神的缺失致使传统人文精神依然盛行,程序设计的形式化严重。我们需以生命为本位对死刑复核程序进行再造:从审判范围、复核方式、合议庭的组成及决策对死刑复核程序进行诉讼化改造;引入检察机关对死刑复核过程及复核结果的法律监督;建立死刑复核辩护律师准入制度和赋予辩护律师广泛权利来保障死刑被告人的权利。

The death penalty review procedure has existed since ancient times. It can be found bytracing its historical evolution that it has expal existence of the death penalty review procedure, and an utilitarian tool of punishment; the modern evolution of the death penalty review procedure, and the treasure of the value of life; and the ultimate goal of the death penalty review procedure. Today although we structure the death penalty review procedure based on the ideas of respecting for life and protecting rights, there are many flaws in the actual procedure. These flaws are as follows： the closeness of the procedure is obvious; the procedures of protecting defendants are few; the effective legal supervision over its execution is absent; it lacks rationality in concluding the death penalty review procedure. There are mainly three reasons that make the creation of the huge gap between the expected value pursuit and the actual value pursuit of the design of 2 the death penalty review procedure. The first reason is that the utilitarian thinking on punishment makes the death penalty review procedure become only the tool of maintaining power. Another reason is that the accumulation of thousands of years of traditional ideas makes us still being affected by inertial thinking regarding entity belittle procedure consciously or unconsciously. The lack of modern humanistic spirit causes the traditional humanistic spirit prevalent and makes the procedure being seriously formalized. This essay suggests that we need to restructure the death penalty review procedure based on the idea of respect for life： it is necessary to lawsuit reform of the death penalty review procedure from the scope of trial, the method of review, the composition and making-decision of the collegial panel. Moreover, it is strongly recommended by this essay to introduce the legal supervision on the process of the death penalty review procedure and the outcomes of review into procuratorial organs. Furthermore, we should establish an access system for defense lawyers involving in the death penalty review procedure and this system empowers defense lawyer a range of rights to safeguard the rights of the defendants.