Research On The Death Penalty Review Procedures

The debate on the issue of the abolition of death penalty in China has reached a consensus, in the theory and the judicial circle, that the abolition of death penalty in our country still has a long way to go. But restricting the application of the death penalty and ensuring the fairness of death penalty cases are always the pursuit of criminal substantive laws and criminal procedure laws. Based on the common idea of the protection of human rights, countries retaining death penalty cases in the world have a very cautious attitude towards the procession of death penalty cases, and set up very strict procedural safeguards. In our country for death penalty cases, special litigation procedures are set up outside the second instance as the final, death penalty review procedures, that are special criminal procedures by the Supreme People’s Court for the review and approval of criminal cases sentenced to death penalty, and its role is to apply the death penalty, the most severe punishment, more rigorously and prudently, and to provide the defendants legal relief once more, and to fully reflect the requirements of procedural justice and to ensure accurate application of death penalty.Death penalty review is a legal system with a long history in our country, sourcing in the Han Dynasty, scheduled in the Sui and Tang Dynasty, mature in the Ming and Qing Dynasty, lasting for more than two thousand years. After the founding of new China, the procedure was preserved in the litigation system, and in the construction of the rule of law after the founding of the People’s Republic of China, the ultimate power of death penalty review was, after several twists and turns, transferred between the Supreme People’s Court and Higher People’s Court. The Supreme People’s Court in January 1, 2007 officially recovered the 20-year decentralized death penalty review power, which is a significant improvement in the criminal justice system of our country. On March 14 th of 2012, the fifth session of the National People’s Congress passed the revision of “Criminal Procedure Law”, the fourth chapter of the third series separately stipulates death penalty review procedures, which is stipulated in principle in six pieces of the law. After several years of judicial practice, the Supreme People’s court inquires the death penalty cases through the death penalty review procedures, and has played an important role in protecting the quality of the death penalty cases, unifying the standard of the death penalty, and protecting human rights. But due to only six pieces of the stipulation in principle, the design of the system, from start to final judgment, is not reasonable, therefore is of great significance and value to the re-examination and improvement of death penalty review procedures of our country, to the perfection of death penalty system and even the whole criminal procedure system, and to the protection of human rights.This paper is divided into two parts: the introduction and the body. In the introduction part, this paper introduces the significance of the research, research hotspots and frontier of currently existing papers, the main innovations of the paper, as well as the main research methods used in this paper.The text is divided into five chapters and makes research related to death penalty review procedures from three aspects. Firstly, by analyzing the reasons of several changes of death penalty review power in China, and investigating extraterritorial death penalty relief procedures, ideas are provided for perfecting China’s death penalty review processions. Also the essential problems of death penalty review procedures are researched, mainly from the value of the protection of human rights and justice and efficiency value that death penalty review procedures itself have, making it clear that the fair value is more important when justice and efficiency come into conflict within death penalty review procedures. Death penalty review procedures are the program design of death penalty review power, to carry on the discussion on basic attributes of death penalty review power, and to clarify the properties of death penalty review power and analyze several basic problems, like the structure of death penalty review procedures(the status and relationship of the accuser, the defender and the judge), and so on.Through the analysis on the properties and structure of death penalty review processes something can be learned, that only after the identifications of the three of the accuser, the defender and the trial are clarified, and the complete structure of litigation where jurisdiction is put under the supervision of law can the unique value of the death penalty review that protects human rights come true, and realizing its functions of fairness and justice, restricting the power, and protecting the legal interest. Therefore, two chapters in the back are on the research of death penalty review power application situation in judicial practice in our country, summarizing the problem existing in China’s current death penalty review procedures, on the basis of analyzing the cause of the problem, this paper focuses on the how to improve the exercise of trial, supervision and defend on the basis of death penalty review procedures of our country’s existing power composite type. The author analyzes and tells his assumption of improving death penalty review procedures of power composite type from the aspects of the update of justice notions, the start of death penalty review cases, jurisdiction, collegial composition, review methods, and the time limit provisions. At the same time, research goes on the necessity of legal supervision by procuratorial organ in death penalty review procedures, on paths and methods that procuratorial organs involves in death penalty review procedures, etc.. The author proposes his own view on the effective exercise of the right to defense, also analyzes the influence of other factors in death penalty review procedures, such as the media hype and the expression of victims’ wishes, putting forward proposals to perfect death penalty review procedures of our country from multi-aspects and multi-angles. Recently adopted measures to improve death penalty review procedures of power composite type, the specific ideas are points for different review procedures: first, if the defendant has no objection for the fact identification of the case, admissibility of evidence and law application, and the procuratorial organ offers no resistance, the court itself is also examined that there is no wrong entity nor procedure law and so on, it is suitable for written marking mode of trial, mainly grasping the policy of the death penalty and uniform application problems. The supreme judge works as “a judge of law”, his responsibility is “the maintenance of the truth of law”; but in the review processes, the judge must question the defendant and defense lawyer shall put forward his opinions. For the opinions of defend lawyer, the judge must listen to and incorporates them into volumes, and the procuratorial organs shall put forward opinions, and final judgment results must be delivered to the Supreme People’s Procuratorate. Second, for the defendant who has objections to the fact identification of the case, admissibility of evidence, law application, etc., the form of trial shall be taken to put the three of the accuser, the defender and the trial into death penalty review trial procedures, all participating in and expressing their views fully, judged by the Supreme Court. With the reform of the procedures, it is necessary to perfect the court trial power and legal supervision power of the procuratorial organs, and to protect the rights of the accused, the right to defense of defense lawyers and the rights and interests of the victims by making laws. At this stage that can not only save the lawsuit resources, but guarantee the efficiency of the proceedings in our country, this conditioned court system can realize the justice and human rights protection function of death penalty review procedures.Finally a general conception and prospect for the design of death penalty review procedures of our country is proposed: with the reduction of death penalty cases and the expansion of judicial resources, at an appropriate time, China should establish three-tiered system for death penalty cases, reflecting public trial, the basic principles of criminal procedure, and maintaining procedure legitimacy. As Robin Maher said, “our challenge is to strive for an institutional change, to ensure that people facing the death penalty, through proper procedures, can get fair and equal access to justice.” In three-tiered system of death penalty cases, prosecutorial organ protest and defendant appellant shall be used as a starting procedure; for cases that neither prosecution organ nor defense appeals for protest and appeal, “compulsory appeal” as an exception. The Higher People’s Court shall submit the matter to the Supreme People’s Court, by this way of starting judicial passivity principle and the neutral position of the court are maintained. Full court procedures should be used in the trial, the prosecution and the defense putting to the proof, crossing examination, the court judging in the middle of the referee, separate conviction and sentencing trial mode shall also be used. For conviction with no doubt, the trial key lies in whether the death penalty is applicable to it, to improve transparency in the trial of a case through the trial program; and to prevent misjudged cases from occurring with proceedings of the third trial; to let the Supreme Court play a role in the nationwide where uniform laws are applicable, and to limit the application of death penalty. With the full implementation of system such as defendant right to silence, lawyers present trial system, and appearing in court of the witness and court investigators, etc., death penalty review cases community survey system and death penalty review cases hearing system are established, materializing the three-tiered system and improving the judicial credibility.