司法控制死刑:可能与限度

The Judicial Control of Death Penalty:the Possibility and Limit

限制死刑已成国际共识,"保留死刑,严格控制死刑"已成我国死刑共识。刑法两次削减死刑罪名后,立法限制死刑的手段暂时用尽,死刑控制路径需要从立法限制转向司法控制。在立法尚保留大量死刑罪名、民众普遍支持死刑的背景下,司法控制死刑要避免"以不杀止杀"的风险,即司法强推"不杀"减少死刑适用;而应恪守"不杀止于杀"的必要限度,即通过司法程序公正、准确地适用死刑("杀"),进而引导死刑民意、赢得舆论支持、构建死刑的司法标准,死刑数量下降("不杀")自然水到渠成。

Limiting the death penalty has become an international consensus. Our country is no exception. ＂Retaining the death penalty and strictly controlling the death penalty＂ have been reached a consensus in our country, too. Following the eighth and ninth amendments to the Criminal Law, the means of restricting the death penalty by legislation have been used up and start to shift to judicial controls. In the context of legislation still retaining a large number of death penalty charges and people generally supporting the death penalty, the judicial control of death penalty enforces the ＂no kill＂ and avoid the risk of ＂No kill from no kill＂ and abide by the limit of ＂No kill from no kill＂. At the same time, the judicial control of death penalty should also reduce the application of death penalty. That is to say, the death penalty must be imposed fairly and accurately through judicial procedures, and then guide public opinion and gain public support to establish the judicial standards of the death penalty. At last, the number of the death penalty will decrease.