On The Reform And Improvement Of Death Penalty Review Procedure

On a worldwide scale, it has been mainstream that restriction and abolition of the death penalty. The policy of "cautious kills, tentative kills and prevention of wrong kills" is the goal of the judicial review of death sentence, as a unique procedure in our country, the judicial review of death sentence play an positive role in its every phase. But now, there are still oversights in the system design of this procedure. All the problems is because of the improper orientation of nature and function of the judicial review of death sentence, based on analysis of nature and function of the judicial review of death sentence and review of actuality of this system.This article is divided into three chapters:The first chapter discusses the nature and function of the judicial review of death sentence. First, the nature of the judicial review of death sentences. The exclusive power of judicial review of death sentence belongs to the Supreme Court; the exertion of the power is exclusive and independent. For the sake of prevention of wrong kills, the construction of the judicial review of death sentence should be logical and rational. In addition, due to the imposition of the death penalty, the judicial review of death sentences should also be trial proceedings. Second, the function of the judicial review of death sentences. Unification of jurisdiction and controlling of penalty are two of the most serious problems in the judicial review of death sentence. Due to the low level of judicial decisions in China, First, the nature of the judicial review of death sentences have to bear certain relief-correction function. However, it is the original function of the Supreme Court that the policy-making function, relief-correction function of the Supreme Courts is limited. Therefore, it should be primary function of the Supreme Court that the policy-making function and the relief-correction function is the minor one.The chapter two reviews the circulation of relief-correction function in China from the angle of nature and function. The system design of the judicial review of death sentence that attached importance to relief-correction but ignored policy-making resulting in the judicial review of death sentence deviated from the special nature of the trial proceedings and track of lawsuit, thus there are a great deal of problems in the scope of the hearing, litigation structure and the operation of procedures. First, the comprehensive scope of trial. The Supreme People's Court reviewed death penalty cases, regardless of whether the disputed facts of the case, all the facts of the case would be reviewed. This is not conducive to the realization of judicial efficiency, and limiting function of the policy-making. Under the pressure of large number cases, the Supreme Court can only achieve efficiency at the expense of due process. Second, the unilateral actions of the structure. Through inspection procedure for reviewing death penalty in the trial organizations, the procurator organs, as well as the involvement of the accused and counsel, believe that the judicial review of death sentences do not possess the nature of the proceedings of the tripartite structure. Procurator organs and the accused, counsel it difficult to participate in the judicial review of death sentences, the prosecution and the defense against the principles of equality are not realized due to the reasons for the judicial committee, organization does not have the status of an independent magistrate procurator organs have directly led to the exclusion of participation in the death penalty review the judge to assume the role of complaints, making unity controlled trial. Third, the administrative procedures of operation. Review of the death penalty to the commencement of proceedings at the lower court way, the accused, the procurator organs have no right to commencement of proceedings; the Supreme People's Court reviewed death penalty cases tried before in writing, not against the prosecution and the defense, the whole procedure by the judges in accordance with the terms of reference, with The terms of reference of the strong features of the judicial review of death sentences no deadline. Automatic commencement of proceedings, way before the terms of reference and procedures for the duration of the common expression with the judicial review of death sentences in the operation of the feature. Fourth, it is the random way of a magistrate. The Supreme People's Court reviewed death penalty cases heard by the three-member judge to sit in judgment on the outcome of the use of a "simple majority" voting principle. This is not in line with international common practice, deprived of the right to life sentence, is not very careful. Based on the transfer of the Supreme People's Court and its pressure and improve the quality of the case to consider the death penalty commuted to give up the right to not be helpful in protecting the rights of defendants, the case could lead to longer and longer, and more likely to lead to the Supreme People's Court into a dilemma: If retrial Court uphold the death penalty retrial, the Supreme People's Court and not to interfere in the case would put off indefinitely, and if the interference is contrary to the principles of independence of the courts.Chapter three remains from the judicial review of death sentences nature and function from the angle of the death penalty in China on the improvement of the procedure for reviewing proposals. If the judicial review of death sentence policy of the functions of good play, the death penalty review cases will be greatly reduced if the judicial review of death sentences relief error-correcting functions is weakening, the Supreme People's Court judicial resources saved. The article maintains that, should adhere to the basic special nature of the trial process in the right functions of the death penalty under review proceedings of the modified procedures. First, we should implement justice and the principle of combining efficiency, the Supreme People's Court mainly on the energy issue through a review of a death penalty laws and policies. As for the disputed cases, there should be a focus on a comprehensive review of the judicial review of death sentences to play error-correcting functions relief. Secondly, the nature of the procedure for reviewing death penalty is still on the trial process, the procedure for reviewing death penalty prosecution and the defense should have participation and confrontation, neutral magistrate judges the basic structure litigation. The judicial review of death sentences must be increased participation of both sides to listen to views of procurator organs is the Supreme People's Court and counsel review the death penalty cases must be heard. In order to make the procurator organs and the participation of counsel in real terms, an increase of complaints and the right to a defense is the proper meaning. Moreover, the procurator organs to prevent improper interference in the judicial committee of the Attorney-General to attend the provisions should be removed. In order to protect the rights of the accused, whether or not the death penalty should be approved by the Supreme People's Court should arraign the defendant. In order to arraign the defendant and substantial results, questioning the accused should be planned ahead of time to review reports and make a deal with a collegiate bench before. In order to guarantee judicial independence, the judicial committee should avoid interfering in the judicial organization. Third, the death penalty and review the structural transformation of litigation that is suited to the operation of the judicial review of death sentences should also be litigation transformation. First, the procedure for reviewing death penalty defendant as the object of protecting the rights, the right to enjoy the commencement of proceedings is a fundamental principle. And the principle that there are exceptions, in order to guarantee the quality of the death penalty trial, to achieve "cautious kill, less kill, prevention of wrong kill" the value of the pursuit of the defendant, even when in the exercise of their rights, the Supreme People's Court to review certain rights is also in the mandatory justice. Second, with the recovery of the right to review death penalty, the full court of second instance, as well as the scope of the death penalty review proceedings of the perfect death penalty review procedures becomes a viable part of the trial. According to the scope of review can distinguish partial hearing: The facts of the case clear and it is not controversial, in principle, only to review the case law, so that the writing of the hearing; for the disputed facts of the case, the need for a review of the facts of the case, so that the trial of the way around the fact that controversy started trial. Third, according to the lawsuit "in a timely manner" principle, the judicial review of death sentences should have a period of commencement of proceedings and trial period, but considering the extreme of the death penalty, should be established for a longer period of the trial. Finally, the death penalty review magistrate way cautiously uses the death penalty should be consistent with the requirements. Increase in the number of collegiate bench on the basis of a "unanimous" principle can be cautiously uses the death penalty has played a significant role in the protection.The Supreme People's Court commuted the death sentence to give up the right to try are not stolen, it should be adhere to the "never suspected crimes" and the "favorable accused" based on the principle of the right to continue to exercise the death penalty commuted.