| "Extremely serious crimes" has always been regarded as the general standard and condition of the death penalty as a key link in the application of the death penalty in China by academic and practical circles.Unfortunately,the understanding of its meaning in the current practical circles has been in a chaotic state since the provisions of "extremely serious crimes" in our criminal law are not clear.The problem of the unclear standard of the death penalty has not been effectively solved due to abstract expression and scattered regulations although there is no lack of refinement and perfection of the applicable standards of the death penalty in judicial interpretations and normative documents.The unclear legislative standards make the phenomenon of different sentences in the same case occur from time to time in the practice of the death penalty.The research of scholars in Yang Haiqiang,Wu Hongyao and other fields shows that the current courts lack clear and unified standards for the application and standard of the death penalty.Michelle Miao,Stanley B.Lubman and other foreign scholars even use the "lottery of justice" to describe the unpredictability and inconsistency of death penalty judgments in China.The unclear standard of the death penalty has a great negative impact on judicial credibility.The judgments of "Li Changkui Case","Liu Yongan Case" and "Yao Jiaxin Case",as the products of "estimating piles"thinking,have aroused the public and criminal law scholars to question the standard of the death penalty.It can be said that the unclear standard of the death penalty hinders the implementation of the death penalty policy of "retaining the death penalty,strictly controlling and carefully applying it" in China to a certain extent.The academic circles have made a lot of research and discussion around "the crime is extremely serious".The reform measures such as withdrawing the right to review the death penalty,limiting the crime of the death penalty,implementing the guiding cases of the death penalty,and increasing life imprisonment have gradually landed with the promotion of criminal law circles.They have not completely solved the problem of unclear standards of the death penalty although these measures have achieved certain results in regulating and restricting the application of the death penalty.Some scholars put forward that the application of the death penalty can be regulated and restricted by strengthening judicial control of the death penalty.However,the leniency and standardization of punishment should be based on the clarification of legislation.In practice,the judicial organs pay more attention to the "leniency" of the death penalty in normative documents and practical activities for the sake of restricting the use of death,which not only fails to properly solve the problem of unclear standards of the death penalty but stimulates people’s rebellious psychology to a certain extent.Cases such as"Guangxi Passion Fruit Girl Case" and "Sichuan Pengzhou Murder Case" have frequently caused public opinion in recent years,which is the best example.Wang Yong summed up this phenomenon as "not killing stimulates killing" in his research,and suggested that the reform of the death penalty should fully respect public opinion and improve the substantive standards for the application of the death penalty.The conviction and sentencing of the death penalty can not be separated from the judgment of value,which is dominated by the local conditions and customs of our country.As far as the current death penalty is concerned,all kinds of problems arising from the unclear standards can be attributed to the contradiction of the concept of the due law of the death penalty.Chen Xingliang pointed out that criminal law is no longer a middle school but a western learning since the birth of modern criminal law in China.Chinese criminal law,including the death penalty,has paid too much attention to foreign experience in the past hundred years,which makes our national ethical culture and moral concepts ignored to a certain extent.Zhang Wenxian believes to this problem that the vitality of Chinese excellent traditional legal culture should be activated with the spirit of the times,and the creative transformation and innovative development of Chinese excellent traditional legal culture should be promoted.As a "Chinese problem",how to perfect and construct the death penalty standard can not be separated from the consideration of the traditional death penalty standard.It is true that the traditional death penalty system has its defects,but whether it is good or bad,it is a part of the national history and cultural accumulation.This study hopes to provide a new perspective and train of thought for perfecting the current death penalty standard through the research paradigm of learning from ancient and modern times,specifically,it is hopeful to respond to the following questions through research:What are the elements of the death penalty standard in the traditional criminal law,and what legislative experiences and skills in the name,individual crime and discretion mechanism are worth learning from at present?How to perfect the positive and negative conditions of the current death penalty standard in order to meet the national conditions and public opinion?How to realize the criminal policy of "combining punishment with leniency" by borrowing the wisdom of Chinese law on the premise of "Killing a little and Killing Carefully"?To better question and answer the above questions,this study upholds the localization perspective,and studies the traditional death penalty standards represented by Qing Law.On the material selection,this study takes the death penalty clauses contained in the five-year edition of Qing Laws of Qianlong as the model of the ancient death penalty system.There are two reasons for choosing this edition:First,the Qing Law inherited many experiences of Chinese legal system since Han and Tang Dynasties in legislative content and adopted the style of compiling laws and regulations in legislative mode.The inheritance of content and the evolution of form made the Qing Code a leader in all previous dynasties.Secondly,the literature review shows that the current academic research and discussion on the Qing Law is mainly based on the five-year edition of the Qing Law in Qianlong.It should be noted that for the death penalty in Qing Dynasty,there is an impression that there are a large number of death penalty provisions and the death penalty is harsh,which is mainly caused by confusing the examples and laws in the Qing Dynasty.For this problem,Lu Li,He Qinhua,Su Yigong and other scholars have proved that the Qing Dynasty law and the Qing Dynasty example are not the same thing,and the examples mainly play a supplementary role in explaining the law text.Hu Xingdong,Min Dongfang and other scholars pointed out that as the main factor constituting the death penalty standard in Qing Dynasty,the law in Qing Dynasty remained in a stable state all the time.The discussion on the traditional death penalty standard is limited to the current death penalty scope considering that the main purpose of this paper is to learn from the past.The eight-discussion system of aristocrats,the charges of rebellion and great rebellion to safeguard imperial power in the traditional criminal law,and the sentencing factors such as slaves and employees are not included in the current criminal law,so they are not discussed in this paper.The article is divided into three parts in the aspect of the research context,besides the introduction.The first part(Chapter 1)examines the current standard of the death penalty in criminal law and the concept of the death penalty behind it from two dimensions:positive conditions and negative conditions.The second part(chapters 2,3 and 4)mainly studies the death penalty standards in traditional criminal law.The second chapter studies the death penalty standard in the law of names.The third chapter takes the crime of intentional homicide,intentional injury and rape as examples to study the specific standards of the traditional death penalty.The fourth chapter starts with the death penalty trial and review procedure,and studies the death penalty discretion standard in the traditional procedure.The third part(Chapter 5,6 and 7)is mainly about the enlightenment of traditional death penalty standards to the present.Chapter 5 is the revelation of the positive conditions in the death penalty standard,Chapter 6 is the revelation of the negative conditions in the death penalty standard,and Chapter 7 is the revelation of the etiquette thought behind the death penalty to the current death penalty standard.The specific contents of the article are as follows:The first chapter discusses and analyzes the positive conditions,negative conditions and the concept of the death penalty in the current death penalty standard.The death penalty standards in the legislative text include the general standards in the general provisions and the specific standards constructed by the specific provisions of criminal law and judicial interpretation on this basis as a positive condition for the application of the death penalty.It can be divided into three categories:statutory prohibition of the application of the death penalty,statutory restriction of the application of the death penalty and discretionary restriction of the application of the death penalty as the negative conditions of the application of the death penalty.The current setting of death penalty standards is too abstract influenced by the concept of "general rather than detailed",which makes it difficult for practical departments to operate.The conviction and sentencing of criminal law can not be separated from the judgment of value.Behind the unclear standard of the death penalty is the value conflict and concept offset at the level of due law.Under the guidance of etiquette and law,the traditional death penalty that has been passed down for thousands of years has shaped the Chinese nation with a death penalty character that is different from other legal systems,such as preventing and preventing punishment,clarifying punishment and teaching,neutralizing and careful punishment,and turning death into life.Although the modernization of the legal system has a certain impact on the people’s concept of the death penalty.However,the endogenous concept of death penalty formed based on traditional etiquette and law still dominates the hearts of the people.Therefore,in order to solve the current problems of the death penalty in China,it is necessary not only to learn from the advanced legislative experience of foreign countries,but also to return to the thought of etiquette and law,and find the answer from the traditional Chinese death penalty legislation.The second chapter studies the death penalty standard in traditional criminal law.The standard of the death penalty in the general provisions of traditional criminal law is mainly stipulated from three aspects:First,in terms of the level of the death penalty,the traditional death penalty varies in terms of whether it is executed,how it is executed,and when it is executed.Among them,whether or not to execute refers to the death penalty replacement system represented by the death penalty for miscellaneous criminals.The death penalty replacement system that is active in the execution stage can play a positive role in preventing the death penalty on the premise of maintaining the stability of the application standard of the death penalty.How to execute refers to the execution methods in traditional criminal law,such as beheading and hanging two to death.Grading the death penalty by execution method essentially uses the label effect to control crime.When to execute refers to the death penalty waiting system of the death penalty.The substantial difference in execution time and consequences between the two types of death sentences,making it the third choice between execution and non-killing.The sufficient level setting within the traditional death penalty makes the application of the death penalty have a large room for turning around.Second,in terms of sentencing circumstances,considering the differences in legislation between ancient and modern times,this paper mainly discusses the four factors that affect the application of the death penalty,such as old and young,commutation of sentences,retention of foster relatives,and joint crimes.In terms of old and young people with disabilities,the criminal law has made detailed provisions for the application of the death penalty to the old and young people with disabilities from absolute resistance to relative resistance,which has greatly maintained the stability of the application of the death penalty.In terms of deductions for surrender,in order to prevent surrender from becoming a death-free gold medal,the ancient surrender system required that the crime of "injuring others" and "not being able to compensate for things" should not be applied to surrender.Regarding the retention of foster relatives,the legislation has added regulations such as observant widows and only sons,no relatives who can be raised but need to be sacrificed,etc.,to further expand the death-limiting effect of the retention system.The accomplice has a reduced punishment.When the traditional criminal law stipulates a joint crime,the intention is usually the first,and the accomplice reduces the grade as the principle.A clear accomplice responsibility distribution system enables the death penalty to be applied to joint crimes in a standardized manner.The third is the crime itself.Under the influence of etiquette and law,the traditional criminal law divides the harmfulness of the behavior itself into ten evils,often forgiveness and other criminal behaviors in order from the highest to the lowest.Except for the ten evils and crimes that are often pardoned,other crimes involving death can be subject to the death penalty.In addition,in order to use the death penalty cautiously,the traditional criminal law also introduced the death penalty addition and reduction system to separate the death penalty from the death penalty.The third chapter mainly studies the traditional death penalty standards from the aspect of specific rules.Limited by space and other factors,this chapter chooses intentional homicide,intentional injury and rape from the traditional criminal law,which are more applicable to the death penalty in current society.First,the crime of intentional homicide,the crime of murder in the traditional criminal law stipulates that the basic intentional homicide can only be applied to the death penalty if it causes death.This is also reflected in the fictitious clause.In addition to basic crimes,the Qing law makes detailed regulations on homicide according to the identity of the criminal subject and the means of the crime.If the perpetrator kills grandparents,parents,supervisors and other high-status objects,or employs extremely cruel killing methods such as killing families,killing children,and dismembering people,the death penalty applied is more severe than ordinary people,and it is generally sentenced to immediate execution.Or late.Second,the crime of intentional injury,according to the "crime of fighting" and "crime of homicide due to fighting" in the Qing law,only when intentional injury causes death,the perpetrator has the possibility of applying the death penalty.In addition to basic crimes,the traditional criminal law raises some harmful acts as crimes mainly based on the difference of the subject’s identity.It directly and vividly reflects the color of the patriarchal hierarchy of the Confucian family.Among them,taking the crime of intentional injury between the elder and the young as an example,the application of the death penalty is based on the principle that the closer the humiliation is,the heavier the punishment,and the farther the service is,the lighter the punishment.Third,the crime of rape,the main purpose of ancient and modern legislation is that there is a big difference in the crime of rape.In addition to regulating rape,the traditional criminal law also regards adultery as a crime.As far as rape is concerned,the Qing law stipulates that only the completed rape is an extremely serious crime,and the death penalty can be applied.In addition to regulating the basic crime of rape in the crime of rape,the traditional criminal law also regulates part of the crime of rape separately according to the different subjects and behaviors.Through the analysis of the above three crimes,we can see that under the influence of Confucian etiquette and law,the traditional criminal law stipulates that basic crimes such as homicide,injury,rape,etc.can only be applied to the death penalty if the criminal behavior leads to specific and serious harm.possibility(the crime is consummated and sentenced to death).On the other hand,identity and behavioral factors are incorporated into the criteria for the application of the death penalty.The application of the death penalty is based on the basic criminal,and fluctuates according to the level of intimacy of the status and the cruelty of the means.The fourth chapter mainly studies the death penalty standard from the procedural aspect.There are also dynamic standards of the death penalty in ancient judicial practice in addition to the static standard in the text.This chapter mainly explores the traditional dynamic standards of the death penalty from three aspects:First,The death penalty cases in the Qing Dynasty had to be tried by the county,prefecture,and provincial departments,and then the superintendent reported it to the central government in the form of an inscription or a memorial according to the content of the case.The trial structure at the central department level is characterized by the Ministry of Punishment as the center,with the assistance of the Dali Temple and the Inspectorate,and at the same time,it is characterized by high-level discussions among ministers.Death penalty cases can be handed over to the emperor for final decision only after thorough discussions at all levels of localities and ministers.From the trial content,the judgment of death penalty cases needs to be recognized by both jurisprudence and reason.The second is the death penalty review procedure.The autumn trial system in Qing Dynasty integrates the death penalty review,the death penalty replay and the death penalty reprieve.Some criminals with extremely serious crimes are excluded from the scope of application of the death penalty by using reasonable factors.The third is the dynamic standard of the death penalty.In order to solve the problem of "infinite false feelings and limited laws",the traditional criminal law introduces "harmony between reason and reason" as the dynamic standard of the death penalty in the adjudication mechanism.The application of reasonable factors is result-oriented,and all the elements that can make the adjudication of death penalty cases reach the "agreement between emotion and crime" can be considered.In practice,the judiciary mainly evaluates the crimes committed by criminals through four dimensions:individual,family,society and country.Reasonable factors can play a more stable role in judicial practice with the system design of citing comparison and case passage.The Qing Dynasty also regulated them from two levels of legislation and judicature in order to prevent the abuse of reasonable factors.The fifth chapter is the enlightenment of the traditional death penalty system to the improvement of the positive conditions in the current death penalty standards.The realization of leniency and individualization of punishment should be based on the typology and clarification of legislation.There are some defects such as no obvious form of sin and strict feudal hierarchy although the traditional criminal law is limited by legislative technology,social form and other factors.However,as far as the positive conditions of the death penalty standard are concerned,it still has rich reference significance:First,in terms of criminal behavior,the traditional death penalty regulates the harm degree of criminal behavior in detail from the substantive factors that affect the constitution of crime,such as the object,means and result of criminal behavior.The specific and clear legislation of traditional criminal law for criminal acts can not only safeguard the rights and interests of victims relatively fairly,but also help to accurately evaluate whether the crimes committed by criminals belong to "extremely serious crimes"from the perspective of retribution punishment.Second,the identity of the subject,the identity factor in the traditional criminal law mainly refers to the social relationship between the criminal and the victim.As far as the construction of the current death penalty standard is concerned,the kinship identity based on blood relatives,the superior and inferior identity based on official duties and the teacher-student identity based on education are worthy of consideration as positive factors in the application of death penalty.Third,the classification of the death penalty.The current criminal law should draw lessons from the traditional criminal law and make the suspended execution of the death penalty into independent punishment,and take it as the starting point of penalty application in death penalty cases.The traditional criminal law can be used for reference to normalize the system of pardon for death for the sake of "combining leniency with fierceness",and at the same time,the limited commutation of life imprisonment with suspended death can be adjusted to limited pardon.In addition,the current criminal law can learn from the system design of the death penalty and redemption of death for miscellaneous crimes in traditional criminal law,and actively introduce the death penalty replacement system to limit the application of the death penalty in the execution stage of the death penalty.The sixth chapter is the revelation of the improvement of the negative conditions of the death penalty standard.The traditional death penalty standards active in feudal society cannot be completely used at present although it is based on the overall gap of social forms.However,the reference to the negative conditions in the traditional death penalty standards will greatly promote the improvement of the current death penalty mechanism and prevent the application of death penalty.To draw lessons from the negative conditions in traditional death penalty standards,we can start from the following three aspects:First,absolutely block the applicable factors of the death penalty.From the perspective of choosing good and using it,the current criminal law should regulate the eligible elderly,disabled people and those who was permitted culprit to support lineal elders as absolute blocking factors in the application of the death penalty in order to limit the application of death penalty and show the idea of benevolence and compassion.The second is the relative obstructing factors in the application of the death penalty.The traditional death penalty has made a relatively clear division of the boundary of the application of the death penalty for such factors in legislation.At present,the criminal law can regulate the victim’s fault as a relative blocking factor in the application of the death penalty on the basis of clarifying the applicable boundary of crime surrender and crime amendment,and drawing lessons from traditional legislative experience.The third is the discretionary sentencing factors in the death penalty standard.Faced with the objective reality of "infinite false feelings and limited laws",we can learn from the traditional legislative experience and introduce the cooperation between feelings and crimes as the applicable standard of discretionary factors.At the same time,the death penalty discretion mechanism and applicable system to be improved,so that reasonable factors can be standardized and stable to play the death penalty obstruction effect.Chapter 7 is the enlightenment of the etiquette and law thought behind the traditional death penalty to the improvement of the current death penalty standard.This chapter starts with the traditional etiquette and law thoughts,and discusses the reference function of the traditional death penalty system to the current death penalty considering that there are great differences between ancient and modern death penalty due to the different social forms.This study holds that the perfection of the current death penalty standard can be improved from the following three directions:the first is the moral punishment standard that the death penalty should be constructed.Traditional death penalty pays special attention to the relationship between morality and punishment.The expression of "morality and propriety are the foundation of politics and religion,and punishment is for politics and religion,especially those morning and nightfall supplement each other to be the whole day,while spring and fall to be the whole year" in Tang Law is to use the natural phenomenon of faint in morning and nightfall,spring and autumn to compare the internal relationship between morality and law.As far as the current death penalty is concerned,the moral factors should be integrated with the normative factors of death penalty after modernity transformation and reconstruction,so that the thought of natural law that law and morality complement each other and morality is the main punishment is the improvement direction of the death penalty standard in China at present.In terms of specific content,we can learn from and improve the death penalty standard from three aspects:morality as the main punishment,respecting heaven and protecting the people,and loving others.The second is the standard of careful punishment that the death penalty should be constructed.The traditional death penalty system has rich reference significance for the present in the aspect of careful use of death penalty.According to the traditional view of cautious punishment,punishment is a "tool for curing evil" which is "used as a last resort".We should be prudent,lenient and as strict as possible to control the scope and intensity of punishment when making laws and implementing penalties,especially the death penalty,and advocate the prudent use and moderation of punishment.As far as the perfection of the standard of cautious punishment of death penalty is concerned,we can learn from three angles:cautious punishment,sympathized in punishment,and clear punishment and careful punishment.The third is the standard of compassionate punishment that the death penalty should be constructed.Traditional death penalty is influenced by the spirit of "benevolence"in Confucian etiquette and law,which has a strong color of benevolence and compassion in system design and judicial application.The traditional death penalty system has always been guided by "etiquette and law are equal",and its eyes are always locked in the overall interests of society.With the aim of "leniency and compassion for killing",it not only gives leniency to specific objects,but also sets up a rich system of forgiveness to prevent the realization of death penalty.Under the concept of "changing the mind and persuading good",the death penalty,like other punishments,takes educating the people and preventing crimes as its main purpose.It is undoubtedly of positive significance to learn from the traditional standard of compassionate punishment for realizing the death penalty policy of killing less and killing carefully.This study takes the traditional criminal law as a mirror due to the limitation of argumentation materials and self-ability,and there are still great deficiencies in the enlightenment research on the current death penalty standard.First,some expressions have improper language words and unclear division of laws and regulations when writing due to the great differences between ancient and modern criminal laws.Secondly,from the point of view of the greatest common denominator,this study focuses on the death penalty standards of intentional homicide,intentional injury and rape in the traditional criminal law,but the discussion of other elements and crimes related to death is slightly insufficient,and the unique characteristics of traditional criminal law such as valuing yin morality and worshiping family morality are not analyzed.Thirdly,there are many discussions on the history of law,but the contents of criminal law norms and criminal law doctrines are lacking,and the discussion of modern criminal law theory in the system reference is not deep enough.Finally,due to the limitation of the author’s level,the horizontal comparison of extraterritorial legislative experience is not enough,and the suggestions and measures in the article are not operational.For the above problems and deficiencies,further research and correction are needed in the future."If you don’t judge the situation,you will be lenient and strict." The legislative skills and experience of "extremely serious crimes" in the traditional criminal law have distinct reference significance for the current sentencing standardization movement and the maintenance of the ethical bottom line.Of course,there are some feudal dross factors in the traditional death penalty system,while there are excellent experiences such as permitting culprit to support lineal elders and coordinating fairness with reason.For example,the traditional death penalty system is quite different from the requirements of modern civilization,democracy and the rule of law in protecting minors and pregnant women,and maintaining the status of respecting elders.Therefore,only by fully studying the traditional death penalty,choosing the best and using it,can we implement the death penalty policy of "Killing a little and Killing Carefully" and realize the criminal goal of "combining punishment with leniency". |
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