The system of suspended execution of death penalty is an original penalty execution system created by New China. It has played an important role in restricting the actual execution of death penalty in the history of our country. There are many flaws in the death reprieve system, which lacks scientificity, rationality and fairness. The article lists and expounds seven defects of the death reprieve system, and believes that these defects must be improved for the continued existence of the death reprieve system in our country.

Article 48 of my country’s “Criminal Law” stipulates:“For criminals who should be sentenced to death, if it is not necessary to execute immediately, they can be sentenced to death with a two-year suspension of execution.“This article is my country’s death penalty suspension system, referred to as death penalty reprieve, and death penalty reprieve is not an independent penalty, but a system for the application of death penalty. At the same time, Article 50 of my country’s “Criminal Law” also stipulates that for criminals who have been sentenced to death with a reprieve, there are three ways to deal with them after the execution period of the reprieve expires:“If a death sentence is suspended, during the period of suspension of execution, if there is no intentional crime,After the expiration of the two-year period, it shall be commuted to life imprisonment; if there are indeed major meritorious service performances, it shall be reduced to fixed-term imprisonment of not less than 15 years but not more than 20 years after the expiration of the two-year period; if it is found to be true for an intentional crime, it shall be approved by the Supreme People’s Court execution.“The provisions of the “Criminal Law” on the death reprieve system are limited to this, but the above-mentioned provisions do have many defects. According to the basic principle of legally prescribed crimes, specific issues should be regulated.

If a person with a reprieve commits an intentional crime during the period of probation, does the death penalty need to expire after a two-year probationary period?

There has been controversy over whether a two-year probationary period is required before executions are carried out. Article 48 of my country’s “Criminal Law” stipulates: “The death penalty is only applicable to criminals who have committed extremely serious crimes. For criminals who should be sentenced to death, if they do not have to be executed immediately, they can be sentenced to death with a two-year suspension of execution.” Therefore Some scholars believe that the purpose of the legislation is to give reprieve offenders a road to rehabilitation, and this requires a comprehensive examination of the performance of reprieve offenders during the two-year probation period. If not wait. If the death penalty is executed without waiting for the expiration of the two-year period, it is suspected of violating the legislative purpose of the death reprieve system. Another point of view is that the two-year reprieve is conditional. If the reprieve still refuses to repent and the intentional crime is verified to be true, the death penalty should be approved, not necessarily after the two-year period expires. There is also a view that the time limit for changing the death sentence from a reprieve to an immediate execution of the death penalty should be treated in a specific case. According to the suspended death sentence, if the crime committed by the offender during the probation period should be executed immediately, there is no need to wait for the expiration of the two-year period; The death penalty shall not be carried out. The author agrees with the third point of view, that criminals with reprieve should be treated differently for their intentional crimes during the probation period: on the one hand, for criminals who should be executed immediately during the probation period, the death penalty can be executed without waiting for two years after approval; On the one hand, for those who have committed other crimes during the probation period, the death penalty will not be executed until the expiration of two years. Although from an objective point of view, among the criminals with reprieve who committed crimes other than the immediate execution of the death penalty, there are many criminals who are subjectively vicious and have no sincerity in reforming themselves. The purpose is to determine a certain time limit and give criminals a chance to reform themselves, and within this statutory period, the criminal enforcement agency will conduct a comprehensive inspection of criminals. This time limit should be established by the legislator based on some reasonable basis, and cannot be shortened or extended at will, otherwise the two-year reprieve system itself is flawed and should not be set in the death reprieve system.

How to deal with the death reprieve inmate who commits an intentional crime after performing major meritorious service during the suspension period

According to the provisions of Article 210, Paragraph 2 of the Criminal Procedure Law and Article 50 of the Criminal Law, during the period of suspension of execution, if a prisoner with a reprieve does perform major meritorious service, after the expiration of the two-year period, the number of years shall be reduced to not less than 15 but not more than 20 years. Fixed-term imprisonment; if an intentional crime is found to be true, the death penalty shall be executed. However, there is no provision in the current law on how to deal with a person with a reprieve who first performs major meritorious service and then commits an intentional crime during the reprieve period. Regarding this issue, some scholars believe that a choice in favor of the criminal should be made, that is, the death penalty should not be executed; however, since the criminal commits a crime intentionally while performing major meritorious service, the sentence should be reduced to life imprisonment. Scholars also believe that crimes can be divided intoSerious intentional crimes that should be sentenced to death or life imprisonment, etc., and different treatment for reprieved criminals according to the degree of major meritorious service. The author believes that intentional crime and major meritorious service are two different concepts, which lack comparability and are difficult to judge and compare in practice. Moreover, major meritorious services are the circumstances of sentencing or commutation of sentences, which have no impact on the determination of intentional crimes. It lacks legal basis, scientificity and rationality to offset the legal consequences of intentional crimes. In this case, because it does not comply with the provisions of commutation to fixed-term imprisonment for major meritorious service, it does not meet the provisions of executing the death penalty for intentionally committed crimes, and it does not meet the requirements for commuting to life imprisonment for those without intentional crimes. Provisions. In the absence of a legal basis in the current law, it is up to the legislature to amend the legislation or at least make a legislative interpretation to achieve it.

How to deal with the death reprieve criminal who commits an intentional crime and then performs major meritorious service during the suspension period

my country’s penal regulations stipulate that if a prisoner with reprieve commits an intentional crime during the period of reprieve, the death penalty shall be executed in accordance with the penalty and verified to be true. If the death penalty is carried out without waiting for the two-year period to expire if some scholars believe that there is an intentional crime during the period of probation, then it is obviously impossible to reasonably deal with the emergence of such a situation. Some scholars believe that after the expiration of the two-year probation period, the intentional crimes and major meritorious services within two years can be fully liquidated, and the merits and demerits can be balanced to obtain the final verdict of approving the death penalty or commuting to other penalties. However, if the final result is not to approve the death penalty: because major meritorious service performance should become the sentencing circumstances of intentional crimes, and the sentencing circumstances can only be applied once, so as to compensate for the immediate execution of the death penalty, it will be applied twice, which is obviously not allowed , is also unfair and unreasonable. The author believes that for criminals who committed both intentional crimes and major meritorious service during the suspension of execution of the death sentence, we can comprehensively examine the benefits brought by their meritorious service to the country and society, as well as the degree of personal danger reduction reflected by repentance, and analyze The proportion between “sin” and “atonement” among them will be analyzed in detail. but currently noWhen amending legislation or making corresponding legislative interpretations, this approach cannot rule out the opportunity for very few criminals to commit intentional crimes: they hold clues to major meritorious service, deliberately refuse to report it, but use it to commit intentional crimes, Afterwards, it was reported to confirm the performance of major crimes.

How to deal with the general meritorious deeds of prisoners on death reprieve during the period of suspension

Since our country’s criminal law only stipulates the major meritorious service performed by the death penalty during the suspension period, in judicial practice, this situation has been incorporated into “During the suspension period, if there is no intentional crime, after the two-year period expires commuted to life imprisonment”. Does it seem unfair that those who have performed meritorious service are treated the same as those who have not committed crimes intentionally? Does the reformation of criminals during the period of reprieve seem less active? However, for general meritorious service, the clauses with major meritorious service cannot be directly applied, so it seems that it is very necessary to deal with the situation of general meritorious service during the suspension of execution. Some scholars suggest that during the period of suspension of execution of the death sentence, if there is indeed meritorious service, it is verified that the sentence is commuted to life imprisonment without waiting for two years. The author believes that any criminal with a suspended death sentence who has performed meritorious service, even if it is not a major meritorious service, is enough to show that the criminal has repented to a large extent and has rehabilitated himself. Such behavior should be used as a legal evaluation during the test period and have an impact on the final result. . Of course, this can only be achieved if the legislature of our country should make overall legislative amendments or at least legislative interpretations on the “no intentional crime and no meritorious service”, meritorious service and major meritorious service performance of death reprieve criminals.

How to deal with the death reprieve criminal who intentionally commits a crime during the suspension period but the circumstances are minor

Article 50 of my country’s “Criminal Law” stipulates that if a prisoner with reprieve commits an intentional crime during the period of reprieve, and it is verified that it is true, the death penalty shall be executed. This shows that the condition for approving the execution of the death penalty with a reprieve is that the criminal commits an intentional crime during the two-year reprieve. The criminal law does not limit the scope of intentional crimes, which means that as long as criminals commit intentional crimes within a period of two years, no matter what kind of intentional crimes they commit, whether they are direct intentional or indirect intentional, and whether the intentional crimes they commit are The state of completion, or the preparation, attempt, or suspension of the incomplete state does not affect the approval of execution of the death penalty. In this regard, some scholars believe that it is unfair to regard intentional crime as a condition for the execution of the death penalty. It believes that since the crimes committed by the criminals before the reprieve sentence have reached the level of the death penalty, they have not been executed, but the intentional crimes committed during the reprieve period have not reached the level of the death penalty but will be executed. The death penalty is clearly unfair. Some scholars also believe that in my country’s criminal law, since the scope of intentional crimes is very wide, and in judicial practice, the criminal circumstances of various intentional crimes are also very different, and the corresponding criminal responsibilities are also divided into degrees of severity. All intentional crimes committed during the execution period will be executed, which may violate the original intention of the Criminal Law and the Criminal Procedure Law to amend the conditions for execution of the death penalty during the suspended execution period. The author believes that, since Article 5 of my country’s “Criminal Law” stipulates: “The severity of the penalty shall be commensurate with the crimes committed by the criminals and the criminal responsibilities they bear.” Criminal responsibility, and if the crime committed is serious, it should bear heavy criminal responsibility. This is also one of the three basic principles stipulated in my country’s “Criminal Law”, the “principle of commensurate crime and punishment”. However, during the reprieve period, if criminals commit subjectively intentional crimes, regardless of the seriousness of the crime, they will all be executed, which obviously violates the principle of adapting crime to punishment, and makes an exception to the principle of adapting crime to punishment in the criminal law. , which is obviously not allowed, nor should it be.

Therefore, the author believes that during the period of reprieve, if the intentional crime is minor and does not need to be sentenced to a penalty or can be exempted from the penalty according to the provisions of the Criminal Law, it should be attributed to the death sentence when the sentence of reprieve is determined.“does not have to be done immediately“situation. If the execution of the death penalty is still carried out on the criminals with reprieve under such circumstances, it will not only violate the original intention of establishing the death penalty system in our country’s criminal law, but also fail to realize the function of the death penalty.

How to deal with criminals found to have missed crimes during the period of suspension of execution and after the implementation of the change

Our country’s “Criminal Law” does not stipulate how to deal with a reprieved prisoner who is found to have other crimes that have not been sentenced during the reprieve test. At this time, should the reprieve be revoked and the reprieve executed for several crimes be punished together, or should the sentence be changed to the death sentence and executed immediately? Some scholars believe that for the missed crimes discovered during the suspension of execution of the death sentence, the provisions of Article 70 of the “Criminal Law” can be referred to to make a judgment on the newly discovered crime, and then the punishment for the subsequent crime and the execution of the suspended death sentence should be combined. Decide on the penalty to be imposed. The author believes that for the omissions found during the probation period, they should be executed together. In this case, there are two results of concurrent punishment, the decision to execute the death penalty with a reprieve and the decision to execute the death penalty immediately. It depends on the degree of the crime of omission: if the crime of omission should be sentenced to death penalty with immediate execution, then it should be sentenced to execution with suspension of death penalty and the final decision should be immediate execution of death penalty; Concurrent punishment for execution should generally continue to be executed with a suspended sentence of execution; even if the omission of a crime should be sentenced to death with a suspended execution, the combined execution can only be executed with a suspended death sentence.

The current laws and judicial interpretations of our country do not involve how to deal with the case where a death reprieve commits an intentional crime during the period of reprieve, but is discovered after the two-year period has expired and the sentence has been commuted, and the statute of limitations for prosecution has not expired. However, in judicial practice, some intentional crimes committed by inmates with reprieve during the period of probation, such as theft in prisons, are generally concealed, and are often not discovered during the two-year probation period of the probation. It was discovered after being commuted to life imprisonment or fixed-term imprisonment, and the intentional crime committed again has not exceeded the limitation period for prosecution. Regarding the handling of this situation, some scholars believe: “Although the “Criminal Law” and “Criminal Procedure Law” only stipulate that a person with a reprieve who commits an intentional crime during the period of suspension of execution shall be executed, there is no regulation on when the intentional crime is discovered. However, The death penalty has been commuted and the sentence determined after the commutation is being executed. Therefore, based on the principle of benefiting the defendant, the death penalty should not be executed on the criminal at this time, and a judgment should be made for the newly discovered crime. Implementing combined punishment for several crimes determines the penalty to be executed by the criminal.” The author agrees with this point of view, and at the same time, this issue should also be discussed in two situations. It is necessary to distinguish the time when the omission of crime is discovered after the probation period expires, and the commutation ruling has not yet been made. What was discovered before was that after the probationary period expired, the omission of crime was discovered only after the commutation ruling was made. If the new crime is discovered after the probation period has expired and before the commutation ruling is made, after the new crime is verified to be true, the execution of the death penalty shall be changed for the reprieved criminal. The reason is that at this time the commutation ruling has not yet been made, and the reprieve has not yet been finally changed. After the new crime is verified to be true, the death penalty should be changed for the reprieved criminal. And if the new crime is discovered after the commutation ruling is made, the death penalty should not be changed to the reprieved prisoner. The reason is that the commutation ruling has been made at this time, and the reprieve has been changed to life imprisonment or fixed-term imprisonment. Based on the stability of the law and the principle of benefiting criminals, the execution of the death sentence should not be changed to the reprieve, but should be executed with the new crime after the judgment is made. The sentence being executed shall be punished in combination in accordance with the provisions of the Criminal Law, and the sentence to be executed shall be determined as appropriate.

During the period of reprieve, the reprieve commits crimes that are dealt with only after being informed, and how to deal with those who have not been informed

Article 50 of my country’s Criminal Law stipulates that if a person with a reprieve commits an intentional crime and it is verified that it is true, the death penalty shall be executed. However, the criminal law does not clarify whether the “intentional crime” includes crimes that are dealt with only after notification. In view of the fact that the death penalty commits a crime that is dealt with only after being informed during the execution of the suspended sentence, but the victim did not tell, and there is no situation where “the victim cannot tell due to coercion and intimidation”, some scholars believe that if the death penalty is executed, then the judiciary will take the initiative. Ascertaining the facts of this crime is “contrary to the establishment purpose of the crime that is dealt with only after being informed.” The author believes that it is reasonable to exclude the crime that is dealt with only after being informed, because in this case, if the victim does not tell, the judiciary will not be able to Will not take the initiative to prosecute, the perpetrator will not be held criminally responsible. Moreover, crimes dealt with only after being informed are excluded, which is in line with the purpose of the death reprieve system: the modern death reprieve system “is the embodiment of the penalty concept of ‘use the death penalty with caution’ and is established under the guidance of the modern penalty purpose of ‘combining punishment and education’” up system.

The system of reprieve is a very effective way of execution of death penalty created by my country’s “Criminal Law”, which can not only retain the deterrent effect of death penalty, but also effectively reduce the actual application of death penalty. Currently restricting and abolishing the death penalty has become an irreversible trend in the world. Since our country does not yet have the historical and realistic conditions for abolishing the death penalty and immediately executing it, we should give full play to the effectiveness of the death penalty system and use it as a reasonable choice for restricting the death penalty at this stage. However, in view of the various defects and imperfections of the death reprieve system, the author believes that the reform of the death reprieve system is imperative, or at leastIt is up to the legislature to amend the legislation or at least make legislative interpretations to address the many deficiencies in the death reprieve system,Only in this way can this penal system with Chinese characteristics be implemented more stably.