Comparative Study On Death Penalty Between China And Japan

The death penalty is one of the most important subjects in the theory of criminallaw, and has always been an important part of the criminal law research in variouscountries. Especially after the introduction of the Criminal Law Amendment (eighthedition), China’s death penalty charges reduced about one fifth. As a result, issue ofthe death penalty became the focus of academic debate once again. However, repeatof the theory is not my intention. I think both the existence and abolition of the deathpenalty are reasonable. In my study, I compared the Chinese death penalty withJapanese death penalty in terms of the social foundation of death penalty formation,the formation of the death penalty, and ultimately the way of developing into the legallaws.The varieties of the death penalty charges set up by China and Japan wereintroduced in the first part. The death penalty charges of Chinese and Japanese penalcode primarily consist of the following parts: (1) In terms of the law interestsprotected by death penalty law, Chinese penal code focuses on the protection ofnational law interests and the law interests of society; while Japanese penal codeemphasizes more on the protection of the law interests of society, and relativelybalances the law interests of society, national law interests and personal law interests.(2) The death penalty charges in the Chinese penal code are primarily non-violentcrimes, while in Japanese penal code the death penalty charges are mostly violentcrimes and others are the death causing results. Only the death penalty charges relatedto national interests requires neither the violence of criminal acts, nor the deathcausing results. (3) In the point of view of number of death penalty charges, there are55 death penalty charges in Chinese penal code; although there are only 17 deathpenalty charges in Japanese penal code, far more than 17 death penalty charges areactually existed based on the objects and behaviors of the charges. The second part is a brief overview of the Chinese and Japanese death penaltiesin terms of the prescribed manner which consists of unique death penalty andselective death penalty. The main differences between Chinese and Japanese deathpenalties in terms of the prescribed manners include: (1) there are four absolute deathpenalties in Chinese criminal law, while there are only one in Japanese penal code. (2)There are seven relative death penalties in Chinese criminal law, while there’s noprovision for relative death penalties in Japanese panel code. (3) In terms of selectivedeath penalty, six out of twelve death penalty charges in Japanese panel codeestablished the short-term free sentence for 2 years, 3 years or five years, while inChinese criminal law the set term imprisonments are all heavy penalties for 10 or 15years imprisonment. (4) In terms of the arrangement of the penalty, there are sixprescribed manners in Japanese penal code and they are arranged from heavy to light.However in Chinese criminal law, only the 232ndintentional homicide charge is in theprescribed manner of the death penalty for life imprisonment or 10 years in prisonand the rest of the five are arranged from light to heavy.The third part briefly summarized the application conditions of death penalty,and analyzed differences and similarities in the application conditions of deathpenalty between Chinese and Japanese death penalties. According to current Chinesecriminal law, death penalties do not apply to crimes under the age of 18 and pregnantwomen in the trial. Death penalties also do not apply to crimes at least 75 years old,except in the case of particularly cruel means to cause death. In Japanese criminal law,death penalties do not apply to people also under 18 years old. Pregnant womendefendant could be still sentenced to death, but the execution could be suspended. Formentally ill people, death penalty could be executed only after the control ability andidentify ability are restored. There are also similarities on application conditions. Asan extreme way to deprive life, death penalty should be properly assigned to achievefairness and justice. As a result, we need to set some special conditions in theapplicability of death penalty in order to achieve the balance between individual andnational interests.The fourth part introduces Chinese and Japanese death executions mainly fromthree aspects: first, whether and how the death penalties are publicly executed and how to execute not publicly; second, the institute and reason of execution; third, thedetailed way and change of Chinese and Japanese execution. (1) China used toexcessively pursuit to publicly execute the death penalty for political purposes andgeneral prevention considerations. But after the 1980s with the continuousimprovement of legal concept and human rights awareness, the way of executiontransited from firing squad to other two ways, and did not evolve to secret executionuntil the end of the 1990s. Japan consistently kept absolutely secret execution ofdeath penalty policy since the Meiji late till present. (2) The executions in China areauthorized to the court and the trial judge who made the first instance verdict. Underthe command of the judge, the executions were specifically operated by armed policeor the judicial police, and supervised by representative officers assigned byprocuratorate which serves as the supervisory authority of national laws. In Japanexecution is based on the judgment of the minister of justice, and is generally carriedout by prison staff. In addition, prosecutors, prosecution service officer, and speciallyauthorized staff can participate in execution. (3) As for the way of execution,execution by shooting was used traditionally in China, and since 1990 both injectionand shooting were used. In comparison, execution by hanging has been used in Japanfor a century since the Meiji period. But there are also ways of execution in commonbetween the two countries: (a) No matter carried out in public or not, the executionsof death penalty are existed for the national interests and the interests of society, andfor national image and the legitimacy of national government. (b) Theimplementation of death penalty is targeting to become more and more humanitarian.The fifth part is a comparative study of Chinese and Japanese death penalty. Inour penal system, life imprisonment is the closest to death penalty. But because deathpenalty itself contains two ways of execution, immediate execution and deathsentence suspended for two years, penalties should be ranked from light to heavy inthe order of life imprisonmentâ†'death sentence suspended for two yearsâ†'immediate execution. Once sentenced to death suspended for the two years, deathexecution could be avoided as long as there’s no intentional crime during thetwo-year suspension period, resulting in largely reduced number of executions ofdeath penalty. In Japanese penal system, life imprisonment is the closest to death penalty. The level of penalties is very clear: life imprisonmentâ†'death penalty. Butthe life imprisonment in Japan has a great range of discretion, including both absolutelife imprisonment and relative life imprisonment. Besides the differences, there arealso similarities between afore penalties of death penalty of the two countries. Thesame as China, there are structural defects in Japan’s penal system for a very longperiod of time, which is mainly the substantial gap between the death penalty andimprisonment. Both the criminal laws of China and Japan made big efforts in findingalternatives for death penalty. But the afore penalties are not merely a replacement ofdeath penalty, but also are essential in making up of death penalty system andreducing the number of death penalty cases.