The Comprehension And Application Of The Proviso For The Old People Inapplicability Of Death Penalty

In 2011, the 8th Amendment to Criminal Law of the People’s Republic of Chinaabsorb the regulation of lenient terms for the elder offender, the third of which is about the old people inapplicability of death penalty. This clause follows the Chines tradition of respect for the old and the young. It also reflects the rule of restraining criminal law and humanitarianism, accords with the aim of punishment and temper justice with mercy policy.The proviso of the old people inapplicability of death penalty leads to a hot discussion. This dissertation does not involve the discussion of the necessity of the clause, but analyze the proviso instead. The proviso makes an exception for the old to fit into capital punishment. If the old should be punished by death penalty, they must cause the death of another person by especially cruel means. Cause the death of another person and especially cruel means are the phrases which should be explained. Especially cruel means includes “cruel”, an adjective word for value evaluation, which is really abstract and obscure. Cause the death of another person appears 41 times in the criminal law, and refers to 35 articles. The subject fault of the cause the death of another person is complicated. Besides, the meaning of cause the death of another person between the special provisions of criminal law and the proviso of the old people inapplicability of death penalty is somewhat different. In the law practice, “especially cruel means” is a kind of discretionary circumstances of death penalty sentencing. In a case, if an offender’s action is considered to be especially cruel without other reduced circumstances of sentencing, he or she is probably adapted to death penalty. The proviso for the old people inapplicability of death penalty makesthe especially cruel means legislated. According to the criminal law, death penalty only applies to these who commit extremely serious crime. The phrase, cause the death of another person by especially cruel means, has close relationship with extremely serious crime, meanwhile there exists more difference. Based on the proviso of the old people inapplicability of death penalty, the dissertation tries to comprehend the meaning of cause the death of another person by especially cruel means, discuss the relationship between cause the death of another person by especially cruel means and extremely serious crime.The dissertation begins with the introduction part and follows main texts with three parts.In the introduction part, the background of the new clause is discussed, including all the lenient terms for the elder offender and the reality of jurisdiction.The first part of the main text introduces the idea of the clause of the old people inapplicability of death penalty. Firstly, the antique regulations of China and the foreign legislation are introduced. Then, from the prospect of criminal rules, such as humanitarianism and temper justice with mercy policy, the clause is analyzed. At last, some explanation of the clause is talked about. The judicial time in this clause means differently. In the clause of the old people inapplicability of death penalty, the judicial time means the last time that the old offender stands trial. And the old offender does not fit into death penalty, including death sentence with immediate execution and with two years suspended execution.The second part is the main part. The phrase of cause the death of another person by especially cruel means is to be comprehended. Especially cruel means and cause the death of another person should have causality. All of these are the most important elements to verdict death penalty to the old offender. There are two rules when comprehending the phrase of especially cruel means. First is the challenge two the whole society. Second is the unnecessary physical and psychological hurt for the victims. Cause the death of another person means that the victim dies. The offender is intent to commit that crime. Not all the cause the death of another person in the criminal has the similar meaning.The third part explains the relationship between the proviso and sentencing. The proviso is a kind of circumstance of sentencing. Extremely cruel means usually seemsas a kind of discretionary circumstance of sentencing, but the proviso makes it legislated. Then is the difference between extremely serious crime and cause the death of another person by especially cruel means distinguished. In the legal practice, it is not right to use cause the death of another person by especially cruel means to substitute extremely serious crime.There comes the conclusion that cause the death of another person by especially cruel means is the only way that makes the old people to fit death punishment. The difference with extremely serious crime should be paid attention. By explaining the phrase, it should be refrained in order to control the number of death penalty.