政治话语与法理逻辑——对我国死缓制度的反思

Political Parlance and Logic of Legal Theory: Review on System of Death Sentence with a Reprieve

死缓制度作为一项独创的法律制度,源自并沿袭了历史政策。其产生由于政治情势而省却了严谨的理论论证与探讨。1979年刑法对于死缓制度的规定在法理与逻辑上均存在严重问题,从而造成立法文意、刑事政策与司法实践的脱节与断裂。新刑法虽对此进行了必要的修正,但问题依然存在,只不过此问题变成了彼问题而已。究其根本原因在于死缓制度自身存在的不合理性所致。所以可以考虑舍弃死缓制度。这种建议并不违反我国少杀、慎杀政策,事实上死缓制度的背后反而隐隐有重刑主义思想的痕迹。

System of death sentence with a reprieve is an original legal system which derived from and followed historical policy. The system takes political situation into consideration, and neglects strict theoretical demonstration and discussion. The system of death sentence with a reprieve prescribed in 1979 Criminal Law had severe problems in theory and logic, and resulted in disjunction and broken of literary meaning of legislation, criminal policy and judicial practice. New Criminal Law has necessarily amended the system, but other problems still exist. The fundamental reason rests with the irrationality of the system itself. Therefore, the system of death sentence with a reprieve may be considered to be abandoned. This proposal does not conflict with the policy of fewer and strict death sentence; otherwise the death sentence with a reprieve conceals the idea of severe punishment.