Cross the chasm from the immediate execution of death penalty to the death sentence with a reprieve --- Interpretation of the ＂not to execute immediately＂

Retaining the death penalty and strict restricting the application of the death penalty is now a basic criminal policy in China, and from the judicial level, the key to the restriction of the death penalty is to study what lenient sentencing discretion the criminal has to constitute ＂not to execute immediately＂ when he has reached the standard of the immediate execution of the death penalty, to cross the chasm from the immediate execution of the death penalty to the death sentence with a reprieve. The basic process of the sentencing is to establish a baseline punishment on the basis of the social harmfulness of the activities of the criminal, and then measure the profits and losses according to the offender＇s personal danger. Therefore, although the social harmfulness of the activities of the criminal reaches the standard of the ＂most heinous crimes＂, due to the existence of the fault of the victim, active compensation for the victim, and the motives of the small blames and other lenient sentencing discretions, the criminal＇s danger has not reached the degree of ＂flagrance＂. Apply the death sentence with a two-year reprieve and even the life imprisonment generally. If there are some strict sentencing discretions, such as ＂the crime means is extremely cruel＂, carefully consider the use of the immediate execution of the death penalty. Under the circumstances of the concurrence of the sentencing, carry on the overall consideration based on the comprehensive measurement of various circumstances of the sentencing.

When Is the Death Penalty Ok?

The death penalty is corn monly referred to as the legal practice of taking a human life in responseto a crime committed by the convicted person. It is a diffi cult and emotional topic though widely practiced in many countries. But whether any government is justified in carrying out the process is unfathomable.

Will the Death Penalty Stop Food Safety Crime?

IN recent years, food safety has become an issue of huge concern. Scandals involving product contamination or the illegal use of banned additives have been repeatedly exposed to the public, like melamine in infant milk powder and the recentc lenbuterol in pig’s feed. In the milk

China's Criminal Law Reform from the Perspective of the International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights reflects the world’s perception of human rights, and is of vital importance in the field of international human rights. The Covenant has been signed by Chinese government. Although not ratified yet, it will definitely have an impact on the reform of China’s Criminal Law. Therefore, it is necessary to further change our notion of the criminal law system by defining the boundary between public power and civil rights and developing the view of human rights protection. In terms of the specific system, it is necessary to further reduce the number of crimes punishable by the death penalty and limit the application of the death sentence, improve China’s Criminal Procedural Law to protect the fundamental rights of suspects and defendants in terms of compulsory measures, investigation means and judicial form, and add some charges like enslavement and illegal human experimentation, which are criminalized around the world, so as to be in line with the requirements of international human rights protection.

Implications of Human Rights in China's Death Penalty Policy and its Manifestations

China’s policy of preserving the death penalty but controlling the death penalty strictly reflects the core value of striking a balance between the protection of human rights and the maintenance of social order. China has achieved remarkable results in strictly restricting the application of the death penalty in recent years, as reflected by the gradual reduction in the number of crimes punishable by death. To further promote human rights protection, China should gradually reform its death penalty policy by moving toward the goal of completely abolishing when the time is right, which requires continuous efforts at different levels across various stages.

Muted Message： Capital Punishment in the Hollywood Cinema

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article＇s consideration of five surprisingly similar films （Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale） finds that they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

我国刑法死刑适用标准的体系解释——兼与冯军教授商榷

“死刑适用标准”的把握依赖于对罪行极其严重的“罪行”、罪行极其严重的“极其严重”、“必须立即执行”与“不是必须立即执行”等问题的正确理解。而冯军教授针对上述问题的阐释有悖于刑法教义学所倡导的体系解释。从体系解释出发,“罪行”应仅仅指行为的客观危害,而不应包括行为人的主观恶性;“极其严重”应指犯罪性质特别严重的犯罪行为造成了极其严重的结果(后果);“必须立即执行”应包括两种情形:一是犯罪分子所犯罪行符合“极其严重”的基本标准,且具有从重处罚量刑情节,或者犯罪人的主观恶性明显严重;二是犯罪分子所犯罪行已经超过“极其严重”的基本标准,且不具备从宽处罚量刑情节,或者犯罪人的主观恶性并非明显较轻。“不是必须立即执行”应包括三种情形:一是犯罪分子所犯罪行刚刚达到“极其严重”的基本标准;二是犯罪分子主观恶性明显较轻;三是犯罪分子具有法定应当从宽处罚的量刑情节或者具有特定范围的酌定从宽处罚量刑情节。

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA Abolition or retention： rethinking the death penalty in China

The idea of abolishing the death penalty is increasingly accepted as a goal by scholars in the field of criminal law, who have put aside all consideration of national realities and the crime situation. Among the factors that have brought about this theoretical consensus is a very important one： statistical data on those counlries that have abolished capital punishment, together with the assumption these figures promote： the fiction that ＂abolition of the death penalty is a world trend.＂ Looking objectively at the number of countries that have abolished the death penalty, reflecting upon the unscientific nature of the statistics that scholars have swallowed whole, and exploring the current international situation are all valuable activities that may significantly assist our thinking on this issue in the context of Chinese realities and help us avoid the pitfalls and blandishments of figures in academic research. China＇s stage of historical development and overall situation mean that this is not the time for the immediate abolition of the death penalty.

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA Abolishing the death penalty：the logical necessity of the irrationality of the death penalty

The logic of proponents of progressive abolition of the death penalty is that although it is illogical and inhumane, it remains rational in today＇s China because of our national circumstances and level of civilization. This is a contradiction in terms. What is illogical should be abandoned. It is spiritual self-abuse for intellectuals to run together the repeal of the death penalty and traditional culture, our current state of civilization, and the attitude of the mass of the people. Just as the popular will has never been the reason for the existence of the death penalty, it has likewise never been the force that resisted abolition of the death penalty. Philosophers have no political power over whether the death penalty is retained or abolished. Just as its preservation best serves the interests of the implementation of political power, so the motive force for its termination comes from the political power of the state and its representatives - politicians.

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA On the ＂criterion＂ of proof in capital cases and the revision of the Criminal Procedure Law

To guarantee quality in capital cases, the first essential is to ensure substantive justice, which means that there must be no problems with regard to the facts and evidence in the case. In ensuring that there is no qualitative problem with either the facts or the evidence in capital cases, the first consideration is that there should be no chance of an irretrievable error. At the same time, it is necessary to forestall any unforgivable miscarriages of justice. To do this, it is necessary to meet the ＂criterion of proof＂ for imposing a death sentence, that is, the requirements for proof. As the requirements for proof can only be guaranteed by adequate procedures, China＇s Criminal Procedure Law needs to improve its handling of procedures relating to capital cases.

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA An empirical study of the application of death penalty

This empirical study of legal interpretation takes as its sample all ＂capital crimes＂ from among the Supreme Court＇s exemplary cases. The study finds significant variations in which crimes are construed as being capital crimes, which capital crimes carry the death penalty, and whether the death sentence is carried out immediately. Based on these findings, the author concludes that legal interpretation involves both normative and autonomous judgments, and that the law itself should be clarified to the maximum extent possible so as to bring about a greater degree of standardization in the application of the death penalty.

HUMAN LIFE AND HUMAN RIGHTS:DEATH PENALTY DATA AND SENTENCING PROCEDURE DURING THE SONG DYNASTY

The adjudication and amnesty system in the Song Dynasty has been thoroughly researched by academia,but the annual death penalty numbers have not been credibly determined due to insufficient and disorganized historical records.The period's policy that no innocent person would be executed was based on the double-digit record of capital punishments for Zhenguan during the Tang Dynasty,and the execution number was adjusted accordingly.As a special procedure,Zoucai(a request for judgment)was used to reduce the death penalty numbers.The value of human life,concern about excessive execution,and trimming of the capital punishment regime resulted in conversations between the emperors and their officials about the death penalty,which allowed the law that executed capital punishments during the Song Dynasty to strike a proper balance between justice,efficiency,and mercy,while avoiding rigidity and abuse.

终身监禁制度的实践风险、理念偏差与本土反思——从美国经验的考察展开

国内流行的死刑替代论和生刑过轻论都有推动终身监禁刑走向扩张的潜能,其理论出发点和论据均有待商榷。国内学界对终身监禁制度域外经验的了解相对匮乏且滞后,尤其缺少对美国教训的充分认识,因此未能作出深刻的理论自省。在死刑废除运动高涨、改造刑理念式微、刑罚民粹主义流行等多重因素的影响下,美国终身监禁刑从兴起走向泛滥并呈现出诸多令人担忧的特征。美国的终身监禁制度是个失败的样本,其教训警示人们终身监禁制度蕴含巨大的实践风险。我国立法者和司法者必须对终身监禁刑采取审慎态度,不宜盲目扩张终身监禁刑的适用范围,否则有滑向重刑主义和刑罚民粹主义的风险。

“普遍”的还是“例外”的:欧美死刑之争的话语解构与启示

全球废除死刑运动的兴起有着复杂的背景。长久以来,死刑废除被人权话语与普遍叙事的单一线索所主导,其背后的特殊政治因素为学界所忽视。在欧美学界的死刑论辩中,美国学者揭露了欧洲将地方性的死刑废除故事纳入普遍性人权话语之中的政治过程,并就美国的特殊国情解释了为何美国保留死刑,侧面为死刑的地方主义进行了辩护。在死刑问题上,欧美之间争论的本质是人权话语权之争、普遍主义与本土主义之争以及自由主义与保守主义之争。当前中国死刑问题讨论受到欧洲普遍主义叙事的影响,因而学界多数意见是支持废除死刑,但这与我国的国情与民意严重背离。欧美的死刑辩论启示我们在死刑问题上要警惕价值渗透,从中国实际国情出发坚定中国在死刑问题上的立场,以更加开阔的视野推动中国死刑改革。

美国死刑的特殊形式

在其他西方国家已经废除死刑之际,美国仍然保留着死刑。传统的思考方式倾向于在美国的“保留”和其他西方国家的“废除”之间提出一个简化的、二元论的问题,但这种方式往往会忽略诸多影响因素,从而产生一个极具误导性的答案。美国的死刑以及刑事政策与其他西方国家相比既有自己的独特之处,但也存在着共性。不能单纯地将两者之间的差异诉诸美国例外主义,要想更好地解释两者之间的差异,需要关注美国目前实施死刑的独特制度与文化形式。本文通过揭示美国死刑的特殊形式,并通过对私刑与当代死刑关系的探讨,解释了当代美国保留死刑的原因。

SPECIAL ISSUE： EXAMINING THE DEATH PENALTY IN CHINA The death penalty and human rights

Human rights are those rights that all human beings should enjoy in reality. The concept is one whose concrete content has evolved over time and diversified across space. While the disappearance of the death penalty is a historical necessity, in China it remains a necessary measure to protect the basic human fights of ordinary citizens. A correct understanding of the provisions of the present Criminal Law would make it entirely possible for us to reduce the actual application of death penalty by 90% in five to ten years. With the easing of social conflict, China may really be able to cease using the death penalty in the foreseeable future and thereby facilitate its disappearance.

Should the Death Penalty Have an Age Ceiling?

On August 23, the Standing Committee of the National People’s Congress, China’s top legislature, conducted the first reading of an amendment to the Criminal Law,

中国传统死刑观探析

在中国传统死刑的制度、思想乃至更广泛意义上的文化背后,存在着一定的价值观念基础。中国传统死刑观是中国传统法律文化的重要组成部分,可以从四个具有代表性的方面予以把握:法律观、治理观、亲伦观以及自然观。对中国传统死刑观的考察,既有助于推进相关领域的学术研究,又有助于在传统的观照下开展对现实的考察。

死刑改革的实践基础和前景

死刑核准权收回至最高人民法院已有十余年,《刑法修正案(八)》和《刑法修正案(九)》也已废除22个罪名的死刑,但学界对于司法反应及立法背景却探讨不多。通过研究2005年至2012年间8个中级人民法院发布的521份(552个被告人)死刑判决书发现:死刑主要适用于暴力和毒品犯罪,复合型严重暴力犯罪的死刑立即执行率最高,毒品犯罪死缓率较高;死刑立即执行和死缓总量均明显下降,但死缓比例显著上升。研究意义在于,对司法裁判所做的数据分析可以为未来我国的死刑改革提供实证基础,刑法可继续废除实践中没有或很少适用的大量罪名,且在总则中明确死缓裁判的条件;司法上重视死缓,控制故意杀人和贩卖毒品的死刑裁判。死刑存废问题在全球并无定论,活跃的学术探讨有助于司法改革与立法修正相得益彰。

三教融通视野下的宋代节庆与停刑

宋代节庆停刑惯例可分为圣节停刑、庆节停刑和其他期日停刑三种类型,并体现在停止死刑奏报、复核及行刑等死刑执行诸环节。唐宋之际逐渐形成的圣节(君主诞日)停刑惯例,反映了中国古代赏刑并举的辩证思维模式和社会治理理念。圣节停刑实质上是以庆赏之名,限制和压缩刑罚适用空间,在传统明德慎罚思想框架内,通过“辍刑”这一标签化行为方式,强化朝廷恩典与慎用死刑之间的直接对应关系。宋代庆节停刑惯例的设立以及纂入立法,主要是释、道二教悲悯好生理念的体现,尤其是宋代道教理念渗入法律执行层面之表彰。伴随道教对于法律的影响日渐深入,经由国家宣示、皇权庇佑和宗教加持,以庆节之名产生的停刑举措,逐渐成为证成宋代盛世文明的重要依凭。除圣节、庆节以外,宋《天圣令》对唐《狱官令》原有的停刑期日进行了调整,在保留元正、寒食、冬至、立春、立夏、雨雪未晴的基础上,新增太岁、三元、大祠、国忌等,皆停刑一日。节庆停刑惯例中礼乐与法制之融合与照应,乃至释道二教悲悯慎刑理念之渗入,反映出宋代礼法合治、赏刑并举、三教融通的治国理念。