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译 范 例 |
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论中国的死刑缓期执行制度
On
the Chinese Practice of Death Sentence
With A Suspension of Execution |
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Abstract
To eliminate death sentence has become an irrevocable course
in the world today. Due to the tremendous impact and proclamation
by human right activists and organizations, great efforts
have been dedicated to restrict or reduce the death sentences
in the regions where such practice yet still exists. As one
of the countries that still follow the practice of death sentence,
China’s criminal law provides for a this punishment, whereby
the practical sentencing and execution have been legally reduced.
In consideration of the legal practice of China, which is
quite noteworthy to the relevant authorities, this article
is dedicated to extensive studies of the historical causes,
legal nature of a suspended execution, moral status as well
as the practical applicability of China’s practice of death
sentence. The following conclusions are observed as a result:
death sentence with a suspended execution is a practice of
criminal punishment that has been uniquely initiated by China.
Such type of punishment will practically reduce and control
the cases of execution. This punishment is neither an independent
lawful punishment nor a simple way of death execution. China
still needs to improve the specific provisions on applicability
of this punishment. |
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提要：
当今世界，死刑废止已成为不可扭转之势。在人权理念、人权组织的深刻影响和大力推动下，至今仍保留死刑的地区也在做着限制和减少死刑的努力。中国作为保留死刑的国家之一，其刑法中的死刑缓期执行制度，具有减少和控制死刑实际适用的法律功能，值得有关地区借鉴。论文阐述了中国死缓制度的由来，剖析了死缓制度的法律性质和价值定位，并就该制度的具体适用问题作了探讨。主要观点包括：死缓制度为新中国所独创的刑罚执行制度；死缓具有减少和控制死刑的实际功效；死缓既不是独立的刑种，也不是简单的死刑执行方法；中国的死缓制度在具体适用条件上存在一定的不足。
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| To
maintain or to eliminate death punishment has been a lasting
controversy amongst the western academics ever since Cesare
Bonesana Becearia, the famous Italian enlightenment criminologist,
called for an elimination of death sentence for the first
time in human history in his immortal works On Crime and Punishment
published in 1764. Great efforts are being given now to abolish
or restrict death sentencing owing to the tremendous impacts
of human rights theories, and the appeal of the international
community, particularly the human rights organizations. According
to The 6th Five-Year Report of Death Penalty Enforcement and
Protection of Rights of the Capital Prisoners by the Director
General of United Nation’s Committee of Economy and Social
Affairs, the number of countries that have abandoned the death
sentencing is on an increase, compared with a shrinking number
of those that go otherwise and still hold on to the capital
punishment practice. Internationally, therefore, there is
apparently an irrevocable trend to death penalty elimination.
In a political address made at the 8th Plenary Session of
CCP in 1956, Mr. Liu Shaiqi, the former Chinese president,
proclaimed solemnly to the world that China would progressively
restrict and control the death sentencing in order to finally
abolish the practice. In consideration of the significant
political as well as economic changes both in and outside
of China after the founding of PRC, particularly following
the reform and opening-up of China to the outside world, there
still exists quite a long way to go before a complete abandonment
of the death punishment in China, although it has now become
a shared knowledge of the Chinese legislators, judicial circles
and academics that death punishment be strictly controlled
and restricted. Uniquely initiated in China, this punishment
has now become an important penal practice of China, whereby
death punishment has been practically and effectively reduced
and controlled. This penal practice, reflecting Chinese characteristics,
has been highly commendable by the academics of other countries.
Therefore, studies of this type of Chinese punishment will
serve to provide significant references for those regions
that still maintain death penalty practice to restrict and
control stringently the practical application of the practice. |
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| 死刑存废问题，自意大利著名刑法启蒙思想家贝卡里亚于1764年在其不朽名著《论犯罪与刑罚》首倡死刑废止论以来，西方国家由此便展开了一场旷日持久的死刑存废之争。而在国际人权理念的深刻影响下，在国际社会尤其是国际人权组织的大力推动下，废除死刑、限制死刑的实践正如火如荼。根据联合国经济及社会理事会秘书长关于死刑和保护死刑犯权利的保障措施的执行第六个五年报告，目前成为废除死刑国家的比例得以保持，同时反对变革的保留死刑地区数目渐少，因而全世界朝着废除死刑方面发生的持续转变是比较显著的。可以说死刑废止运动已成为国际潮流。在中国1956年刘少奇就在党的“八大”所作的政治报告中庄严向全世界宣告：将通过减少和控制死刑，“逐步地达到完全废除死刑的目的。”然而，解放后尤其是改革开放以来，由于国内外政治、经济形势的变化，中国走向完全废除死刑的道路尚任重而道远，但严格控制和减少死刑，已成为中国立法、司法和学界的共识。而死刑缓期执行作为新中国独创而重要的一项刑罚制度，在实际减少和控制死刑的适用方面效果显著，成为中国特色刑罚制度的重要体现，亦为其他国家的学者所称道。研讨中国刑法上的死刑缓期执行制度，对于尚未废除死刑地区减少和严格控制死刑的实际适用有重要参考和借鉴意义。 |
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| This
article is presented with the highlight on the following sections
including the detailed studies of the subject. |
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| 论文分别从具体内容等几个层面展开论述。 |
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| I.
Historical Background |
| 一、中国死缓制度的由来 |
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| According
to the academics from China mainland, the practice of this
punishment was initiated in China at the peak of the Movement
of Crackdown of Counter-Revolutionaries in 1951, two years
after the founding of PRC. It is a very special type of execution
of death punishment that is considered to be a practical invention
of the Chinese Communist Party then represented by Mao Tse-Tung.
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| 在中国大陆学界，一般认为死缓制度产生于1951年新中国成立之初的镇压反革命运动高潮中，是以毛泽东为代表的中国共产党人在实践的基础上创造出来的独树一帜的死刑执行制度。 |
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| Historically,
the term first appeared in Resolution on Penalty Execution
of the Imperialists in Chinese Soviet Areas, No. 185th Notice
of Central Committee of Communist Party of China issued in
November, 1930. According to the Resolution, death sentence
with a suspension of execution could be applied to punish
the foreign enemies （外国人）, namely, the sentenced prisoners
would be imprisoned and the execution suspended for a period
of time that was not then specified. This practice of punishment,
applicable in specific historical situation and strategically
designed particularly to fight against the enemies, is obviously
different from the provision on application of death sentence
with a suspension of execution that is prescribed by the Criminal
Law of China in terms of the nature, purpose and applicability.
The idea of adopting this type of punishment is believed to
have originated from a proposal made by Chairman Mao in May,
1951 to revise the Resolution of the Third National Public
Security Conference. According to Mao, “those who have not
committed any blood debt, nor have earned severe popular indignation,
or who were seriously detrimental but were not the most severely
dangerous to the national interest, and thus deserve a death
penalty, shall be sentenced to death with two-year reprieve,
and shall perform forced labor so that we will see if they
have been properly reformed”. The emphasis of this type of
practice then adopted was attached heavily on the political
strategic aspect rather than the legal significance. The applicability
of this practice was subsequently and gradually extended to
punish embezzlers, war criminals, counter-revolutionaries
and common criminals. It was not a statutory provision as
what we understand today until September 30, 1954, when the
Commission of Legal Affairs of the Central People’s Government
launched Draft Principles (Draft) for Criminal Law of PRC,
with a specific provision (Article 10 thereof) on application
of this punishment. This provision was continued by several
drafts subsequently. With the enactment of Criminal Code in
1979, it was finally declared a penal provision to substitute
the previous one. According to Clause 1 of Article 43 thereof,
“Death penalty shall only be applied to the criminals guilty
of the most heinous and enormous crimes. If the immediate
execution of a criminal punishable by death is not deemed
necessary, a reprieve mat be pronounced simultaneously with
the imposition of the death sentence, and compulsory labor
is forced to determine whether the criminals mend their deeds”.
The Criminal Code subsequently revised in 1997 has further
improved the specifications on this punishment with regards
to the applicability, procedure of examination and approval,
post-reprieve process死缓考验期满后的处理 , determination
of the period of the reprieve and of the period of imprisonment
of a death criminal commuted to a fixed term, etc.. 死缓减为有期徒刑的刑期计算
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| 其称谓最早见于1930年11月中共中央通知第185号《关于苏区惩办帝国主义的办法的决议》。《决议》规定，对外国人可适用“死刑缓刑”，即判处死刑后，缓刑若干时期暂时监禁，而缓刑的期限则没有限制。这项政策本是特定历史条件下适用，具有明显的对敌斗争策略的性质，其与中国刑法中的死缓制度无论在性质、功能上，还是适用范围上都具有明显的不同。可认为其思想发端的是中国政府的毛主席于1951年5月针对《第三次全国公安会议决议》提出的修改意见，他提出，“对于没有血债，民愤不大和虽然严重地损害国家利益但尚未达到最严重的程度，而有罪该处死者，应当采取判处死刑，缓期二年执行，强迫劳动，以观后效的政策。”但这时的死缓仍具有浓厚的政治斗争策略色彩，而并没有明确地强调这一制度的法律意义。之后其适用范围逐渐扩大到贪污罪、战争罪犯、反革命罪和普通刑事犯罪。上升到今天法律意义上的死缓制度的规定，则是1954年9月30日中央人民政府法制委员会提出的《中华人民共和国刑法指导原则草案》（初稿），该草案第10条规定的死缓制度，并为以后若干草案所延续。直至1979年刑法典第43条第1款明确规定：“死刑只适用于罪大恶极的犯罪分子。对于应当判处死刑的犯罪分子，如果不是立即必须执行的，可以判处死刑同时宣告缓期执行，实行劳动改造，以观后效。”其作为一项替代性刑罚措施得以最终确立。修订后的1997年刑法典对这一制度从死缓的适用条件、核准程序、死缓考验期满后的处理以及死缓考验期间的计算与死缓减为有期徒刑的刑期计算问题等方面作了进一步的完善。 |
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| According
to some law professionals, this punishment was not first innovated
in China, and some argued that it was started by British legislators
and juries at a time much earlier than in China. As a support
to this argument, Forty Years Experience As A Forensic Doctor,
an autobiography of the first forensic professor of London
University, was taken to show that there had been four cases
of death sentences with a suspension of execution from 1942
to July, 1949. Furthermore, it was believed that the types
of death penalty applied by French juries in 1793 included
death sentence with a suspension of execution. And some would
even argue that this practice was started long back in ancient
China, and that the practice of sentencing the jailed in autumn
prevailing in Ming and Qing dynasties was in fact, for instance,
an old practice of this punishment. Despite the fact that
the practice of suspended hanging or decapitation execution
in ancient China might have reasonably contributed to the
application of this punishment, or that some cases of death
execution of foreign countries might sound identical to this
punishment, we believe however the Criminal Law of China,
innovatively including this practice as a statutory provision,
has been widely recognized by a number of reputable foreign
criminologists. More specifically, the practice of suspended
hanging or decapitation execution in ancient China’s Ming
and Qing dynasties was, in a strict sense, relative to the
instant execution of hanging or decapitation, and the practice
of suspended hanging or decapitation execution in ancient
China served in fact as a procedure of reviewing and examination
of the death cases sentenced by central or local government,
and the final outcome of the sentenced cases was totally irrelevant
to the mending of behaviors by the jailed. The implication
of this punishment of today provides not only for a review
and examination of the sentences, but also, most importantly,
for the subjective as well as objective circumstances that
make this practice totally different from that of instant
execution. As for the case of Luois of 1793路易案, as has
been previously cited, it was just a proposal of suspended
execution, which, as a special judicial case, was not developed
as a statutory provision. The British Registration of Death
Sentence死刑登记does not literally mean that this punishment
has been established as a statutory provision in the country.
As the registration may have indeed restrained the applied
execution of the sentenced to certain extent, it is still
fundamentally different from the practice of death sentence
with a suspension of execution. |
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| 在学界，曾有学者认为，死缓制度不是新中国独创。其中有的论者指出，判处死缓的制度在英国的刑事立法、审判实践中的运用比中国早得多，并从英国伦敦大学第一位法医学教授的自传体著作《法医生涯四十年》中举出1942年至1949年7月间四起缓期执行的案例；有的论者认为在1793年法国当时在实际运用刑罚时已经有了死缓。有的论者则认为中国历史上早已有之，如明清两代的死囚监侯秋审制，就是古代的一种事实上的死缓制度。我们认为，无论是否从古代社会的绞监候和斩监候汲取了合理因素，也无论国外某些具体死刑执行措施具有死缓的某些特点，死缓作为一项具体的制度而被规定在刑法中，中国的刑法的确独树一帜，这一点也为不少国外著名的刑法学者所认同。因为严格地讲中国明清时期的斩监候、绞监候只是与斩立决、绞立决相对应的判决方式，实质上是对中央和地方所判处死刑案件的一种复核程序，最后的处理结果与犯罪人的悔改程度没有任何联系。而现代意义上的死缓制度，不仅包含了死刑复核的内容，更多地则是强调其具有不同于死刑立即执行的一系列主客观条件。至于前述所举的法国1793年路易案，只是有人主张应处死刑缓刑，但只是司法实践中的特殊情况，并没有上升为一种法律制度。而英国法律的“死刑登记”规定并不能表明英国已经确立了死缓制度。死刑登记尽管可能实际起到一定的限制死刑适用效用，但与死缓制度还相差甚远。 |
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| In conclusion,
the application of this punishment, which serves as a significant
instrument for reduction of death penalty and substitute for
the physical execution in nowadays, is undoubtedly an innovative
Chinese way of execution of death sentence. |
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因此，作为现代意义上限制死刑的重要举措、代替死刑实际执行的制度，死缓制度毫无疑问应是新中国所独创、独有而独树一帜的死刑执行制度。
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| II. Status of the
Application of This punishment |
| 二、死缓制度的定位 |
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| 1. Evaluation of
the Application |
| （一）价值定位 |
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| There have been
contradicting viewpoints amongst the academics all around
the world today as regards practical reduction of death execution
as a result of application of this punishment, and the necessity
to adopt this practice while keeping death penalty. |
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| 对于死刑缓期执行制度能否起到限制死刑实际适用的作用，以及在保留死刑的情况下是否有存在的价值，中外学者皆发表了不同意见： |
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| In Japan, some
reputable criminologists propose that Japan learn from the
Chinese practice of this punishment to improve the their practice
of death penalty, while others are of the opinion that any
maneuver intended to restrict the existing applicability of
death penalty, which has been conducted with due care in reality,
would lead to a virtual abolishment of death penalty. Within
the present legal scenario, as a result, nothing could be
readily available to restrict the applicability of death penalty,
except that more diligence and greater care shall be required
while handling the sentencing of the penalty. |
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| 在日本，有些著名刑法学者建议借鉴中国的死缓制度以完善日本的刑法死刑制度，也有学者认为，现今的死刑适用极为慎重，在此基础上再限制死刑宣告，便等于实质上废除了死刑。因此在现行法下除应慎重判处死刑外，恐怕没有限制适用死刑之路可走。 |
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| Many
scholars from Taiwan of China, including Prof. Tsai Tun –
Min蔡墩铭等教授, the famous criminologist,
believe that this practice prescribed under the Criminal Law
of the mainland, something absent in Taiwan’s criminal law
practice, deserves a special consideration for practical introduction,
because this punishment, suited to the individualization of
criminological practice, will lead to a more flexible operation
of the existing provision on death penalty. The practice of
this punishment in the mainland is considered to reflect the
essential objectives of a criminal law, and is believed to
be helpful in minimizing the after-pain of mis-judged cases,
softening the cruelty of a death punishment, promoting the
essence of humanitarianism and in transitioning to the final
abandonment of death penalty. Some experts would even suggest
to introduce this practice from the mainland and have it reformed
by means of, for example, setting up a commission for reviewing
the application of this punishment, and extending the period
of a reprieve by additional 2 to 7 years, etc.. A majority
of the Ministry of Statutory Affairs of Taiwan台湾司法实务部门
have shown positive attitude toward this suggestion. An opinion
poll conducted by the Ministry in 1993 showed 63.1% of the
common population, 53% of the elite circles and 45.8% of the
judicial practitioners were for the intended introduction
of the practice of this punishment from the mainland. Those
against the proposal would claim that this practice of the
mainland was a legalized political instrument expressed in
abstract and ambiguous wording, which violated the principle
of judgment on a pure legal basis违背罪刑法定主义,
and therefore should not be taken too serious. In the meantime,
some would believe that, historically, the practice of this
punishment could be taken as a legalization of the political
instrument, which purported to serve as a policy of mollification
taken to handle the counter-revolutionaries under a particular
political situation immediately following the founding of
PRC. They would argue, moreover, that the provision on this
punishment, when expressed mostly in abstract and general
terms, would render the application subjective. As a result,
it would deserve a double check to ensure that the provision
be worked out in the principle of judgment on a pure legal
basis, and that the good faith implied therein be properly
maintained.是否会违背罪刑法定主义，是否会使其原来的立法美意丧失殆尽
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| 在中国台湾，著名刑法学者蔡墩铭等教授认为，大陆刑法规定死缓为台湾刑法所无，故特别值得重视，认为死缓符合刑罚个别化之要求，更能灵活运用现有死刑制度，为可以考虑采行之办法；有的学者对大陆死缓制度的优点概括为符合刑罚之本质与目的、减少误判之后遗症、缓和死刑之残酷性、发挥人道主义之精神、作为废止死刑之过渡形式；有的学者甚至提出吸收大陆死缓制度，并予以改革，如设置死缓审查委员会、死缓制度的缓期执行期间可延长2至7年，等等。台湾司法实务部门对此持赞成态度也占多数。“法务部”曾在1993年进行过一次民意调查，调查显示一般民众对将来引用大陆死缓制度问题，有63.1%表示赞同；在社会精英中，有53%赞同；司法官中有45.8%表示赞同。亦有反对者认为，大陆死缓制度是政治手段的法律化，大陆死缓制度条文上使用语意抽象的词语，违背罪刑法定主义，对死缓制度不应有过高的期待。如有的论者认为，“从其产生的历史背景来看，可以说是政治手段的法律化，完全是针对当时解放初期政治局势下对反革命分子的一种怀柔。”“死缓制度在条文中大量使用一些用语抽象概括的用字，势必会沦为主观，如此以来，是否会违背罪刑法定主义，是否会使其原来的立法美意丧失殆尽，颇值得深思。” |
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| In the mid and
late 1950s, there was a heated debate in China mainland as
well. The arguments of those in support of the removal of
this punishment mainly included: (1) The political situation
whereby this punishment was initiated had changed. In the
spirit of leniency under the new circumstances, long-term
or life imprisonment would now become applicable to the counter-revolutionaries
previously punishable by this punishment. The practice of
this punishment became unnecessary as a result. (2) This punishment
would cause excessive mental pressure on the sentenced prisoners,
which was no humanitarian. (3) It would be ironical to apply
this punishment to the criminals punishable by death just
to show humanitarianism. (4) As the criminals must be penalized
properly with the punishment precisely fit for the crimes,
the practice of this punishment would constitute certain operational
difficulties because this punishment, falling within the category
of death sentence, means something uncertain that exists between
death or life但又介于死与不死之间，显得不稳定. (5) Upon expiration of two-years
of reform through forced labor, some of the criminals sentenced
to death with a suspension of execution are subsequently commuted
to a termed jail, which is in fact lighter than a life imprisonment.
This accounts for the reason why some criminals sentenced
to life imprisonment would ask to change for this punishment.
The arguments of those in support of the continuation of this
punishment include: (1) Change of political situation does
not prevent continuation of the practice of this punishment.
(2) This punishment shall not be substituted with life or
long-termed imprisonment. The practice of a suspended execution
works very well since not many of the criminals sentenced
to death with a suspension of execution are physically and
subsequently executed. (3) Reflecting a spirit of leniency,
this punishment is not an independent type of punishment.
And leniency is not recklessly granted, for stringent preconditions
are also prescribed simultaneously. (4) The practice of this
punishment is responsive in all respects to the call of humanitarianism.
(5) During the physical operation of the practice, there may
exist certain issues that are to be separately addressed.
These issues shall not be taken however as an excuse to repudiate
the practice, as one does not give up eating for fear of choking.
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| 在中国大陆上个世纪50年代中后期也曾发生过激烈的争论，死缓制度废除论者的理由主要是：（1）提出死缓的政治形势有了变化，在新形势下按实行宽大政策的精神，过去适用死缓的反革命分子，都变为适用长期徒刑或无期徒刑的对象，死缓制度已没有继续存在的必要；（2）死缓对犯罪分子精神压力过大，不符合人道主义；（3）对必须判处死刑的人适用死缓是无原则的谈人道主义；（4）对于罪犯在适用刑罚时，应当力求准确、稳当和罪刑相适应，死缓属于死刑范畴，但又介于死与不死之间，显得不稳定，审判人员在具体掌握上有一定困难；（5）判处死缓的人，经过二年劳动改造后，有的减为有期徒刑，实际上比判无期徒刑还轻，因而有些被判处无期徒刑的犯人要求判处死缓。保留论者则认为：（1）政治形势的变化不影响继续保留死缓制度；（2）死缓不能用无期徒刑或者长期徒刑来代替，被判处死缓的结果是执行死刑的不多，正说明了死缓制度收到了很好的效果；（3）死缓并非独立刑种，死缓体现了宽大，但并非是宽大无边，有严格的条件限制；（4）死缓制度完全符合人道主义精神；（5）死缓在实际执行中，即使存在个别问题，而且另需裁定，但都不能因此作为否定死缓制度的根据，不应因噎废食。 |
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| Practice is the
only way to test the truth. Application of this punishment
was expressly specified for the first time in the Criminal
Code in 1979, and was improved in the revised Codes in 1997.
This has given a great credit to substantiate the actual effects
of the practice when applied. Particularly, considering the
fact that there are quite many crimes punishable by death
as per the Chinese Criminal Code, the application of this
punishment, when properly conducted, has been generally deemed
to be an important instrument for restriction and reduction
of the applicability for death sentencing. It is no easy to
create and launch a new system of practice, let alone inheritance
of laws of a different historical background. Therefore we
have good reasons to keep on developing and improving the
application of this punishment so uniquely innovated by the
socialist China, in such a manner as to adapt to the changes
of the new era. The proper attitude shall not be a reckless
repudiation of the punishment, instead, we shall make unremitting
efforts to improve the practice to enable China to virtually
abandon death sentencing and abolish the statutory provision
for such sentence, and to finally make China a country virtually
free of death penalty. Therefore, it is groundless to repudiate
the necessary continuation of the practice of this punishment
on the excuse of a changed historical background, a viewpoint
held by the abovementioned scholars from Taiwan as well as
those from the mainland. According to relevant historical
records, as a matter of fact, this punishment was applied
to criminals of many other crimes, and not just to the counter-revolutionaries,
even in the years immediately after the founding of PRC. For
instance, it was applied to war criminals, counter-revolutionaries
and common criminals, according to the Resolution on Granting
Special Amnesty to the Truly Reformed Criminals, passed on
the 9th Session of the Second National People’s Congress convened
on September 17, 1959, as well as the Writ of Special Amnesty
subsequently decreed by Liu Shaoqi, then the president of
the country. |
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| “实践是检验真理的唯一标准”。死缓制度自首次被明确规定在1979年刑法典中，至1997年修订后的刑法典对之加以完善，以其适用的实际效果显示出强大的生命力，尤其是在中国刑法典死刑罪名较多的情况下，死缓制度的恰当运用被普遍认为是限制、减少死刑适用的重要制度保障。我们认为，一项制度的创设来之不易，不同历史类型下的法律制度尚存在法律继承问题，作为中国社会主义国家所独创的死缓制度更应该在新的时代背景下，不断地予以发展、完善，为中国走向事实上废除死刑乃至完全废除死刑立法，使中国成为事实上废除死刑的国家而作坚实的铺垫，这才是我们应有的态度，而不是简单地否定。因而如上述台湾部分学者以及大陆对死缓持否定态度的学者以死缓制度的提出背景与时代发展变化不同而否定死缓制度继续存在必要的观点是站不住脚的。事实上，根据有关史料，即便是在建国初期，死缓制度的适用范围也已经扩大到除反革命犯罪之外的其他类型的犯罪。如我们可以从1959年9月17日第二届全国人大常委会第九次会议上通过的《关于特赦确实改恶从善的罪犯的决定》以及刘少奇主席发布的特赦令可以明确地看到，当时死缓的适用对象已经包括战争罪犯、反革命罪犯和普通刑事罪犯。 |
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| As the Chinese
practice of this punishment purports to punish as well as
educate the criminals, which is the essential purpose of a
penalty, and enriches the practice of death sentence with
immediate execution with a make-up of educational instrument,
it will better serve the purposes of special prevention as
well as general prevention as compared with the practice of
death sentence with immediate execution. As long as death
penalty is applicable, it will be more humanitarian to follow
the practice of this punishment. Retributively, this practice
will serve to reasonably weaken the social reactions. Where
it is not yet a good time to abolish death penalty in China
today, it will be a justified effort for us to take into full
account of the changed circumstances of the new era and redefine
the theoretical basis for the practice of this punishment,
so as to enhance the applicability of the practice and to
take an active role to attend to the operational issues in
an attempt to formulate a perfect practice as such.
|
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| 我们认为，中国的死缓制度因循了惩罚与教育这一刑罚本质，并且弥补了死刑立即执行在刑罚教育功能上的欠缺，其相比死刑立即执行更能发挥一般预防与特殊预防的目的；在保留死刑的前提下，可以较为充分地表达人权观念；从刑罚报应的立场，其具有合理淡化社会反应的功效。因此在中国目前废止死刑尚不适宜的情况下，在新的时代条件下如何对死缓制度的理论基础进行重新阐释，进一步扩大死缓制度的生存、发展空间，并积极研讨死缓制度适用中的问题使之臻于完善，才是我们努力的方向。 |
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2. Determination
of the Nature
How to determine the nature of the practice of this punishment?
What is the relation between this practice and the death penalty?
The answers to these questions relate to the future of the
application of this punishment |
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（二）性质定位
如何看待死缓的性质？死缓与死刑的关系是什么？这是关乎死缓制度命运前途的重大问题。 |
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(1) Is This Punishment
An Independent Kind of Penalty
The criminologists of mainland China generally believe that
this punishment is not an independent type of penalty, and,
falling within the scope of death penalty, it is a specific
means of enforcement of death sentence. However, some others
argue that it shall be taken as an independent type of penalty
for the main reasons as follows: (1) To deem this punishment
as a means of enforcement of death penalty will create contradictions
in the Criminal Code. According to the Chinese Criminal Code
enacted in 1979, death penalty shall not be imposed on persons
who have not reached the age of 18 at the time the crime is
committed, it is spontaneously specified that this punishment
can be imposed on the persons who have reached the age of
16 and not yet 18 at the time an extremely serious crime is
committed. As a means of enforcement of death penalty, this
punishment must be established on the precondition of death
penalty. According to the aforesaid provision, however, no
death penalty shall be imposed on the juvenile criminals,
while death sentence with a suspension of execution can be
imposable as per the same provision. What is the basis of
imposition of this punishment then specified therein? (2)
Essential differences exist between this punishment and death
penalty (immediate execution), so, to treat this punishment
as an independent type of punishment will not increase the
cases of death execution in practice. (3) To treat this punishment
as an independent type of penalty and categorize it in between
the death penalty and life imprisonment will help to build
up a more reasonable penalty system and to reduce the types
of crimes punishable for death penalty. |
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1．死缓是否独立的刑种
在中国大陆刑法学界，一般认为，死缓并非独立的刑种，其隶属于死刑，只是死刑的一种具体执行制度。但也有的论者提出，死缓应作为独立的刑种，理由主要有：（1）把死缓作为死刑的执行制度使刑法典内部规定存在矛盾。中国1979年刑法典规定，犯罪时不满18岁的人不适用死刑，同时又规定，已满16岁不满18岁的人，如果所犯罪行特别严重，可以判处死缓。既然死缓是死刑的一种执行制度，它必须以死刑为前提，既然以死刑为前提，则上述规定一方面规定未成年人犯罪不判处死刑，另一方面又可以判处死缓，那么这里的死缓以什么为依存？（2）死缓和死刑（立即执行）有着质的不同，将死缓独立出来作为独立的刑种不会增加司法实践中死刑的执行。（3）将死缓作为独立刑种，排列于死刑与无期徒刑之间，使刑罚体系更加合理，而且更有助于减少死刑罪名。 |
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| The first reason
stated as above attacks the weakest point of the 1979 provision
on application of this punishment. Logically, a contradiction
did exist when specifying that juvenile criminals should not
be sentenced to death on one hand, while death sentence with
a suspension of execution was imposable on the other hand.
This confusion has been however eliminated as per the prevailing
Criminal Code passed in 1997. There exist common points as
well as differences between this punishment and death penalty
(immediate execution). However, taking both as types of penalty,
we will find that common points outweigh the differences:
the uncertainty of legal consequences of this punishment exists
due to the different types of execution of the punishment
(there are three legal consequences upon expiry of the reprieve
in the case of death sentence with a suspension of execution:
death execution, commutation to life imprisonment, and commutation
to a termed imprisonment). Where a specific type of punishment
is applied, specific legal consequence will be generated with
specific execution of penalty on the criminal. The certainty
of the legal consequences is closely related with the certainty
of the type of punishment imposed, although imposition of
a specific type of punishment may be subject to determination
of the judges to certain extent. 尽管刑罚本身通常具有一定的幅度可供法官自由裁量.
This relative uncertainty just relates to the scopes of the
execution itself, and is immediately relevant to the type
of punishment. The legal consequences of death sentence with
a suspension of execution, however, reflect something much
more than the types of punishment. Therefore, it is fundamentally
inappropriate to treat death sentence with a suspension of
execution a type of punishment. |
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| 应当说，上述第一条理由所指出的问题是1979年刑法典关于死缓制度规定的一个“硬伤”，在未成年人不应判处死刑但可以判处死缓的规定上，确存在逻辑上的矛盾之处，但这一问题已为现行的1997年刑法典所克服。尽管死缓与死刑（立即执行）相比，具有共同点，也具有不同点，但如果从作为刑种的角度考察，二者的共性大于特殊性、相同点多于不同点：死缓的法律后果具有实际执行不同刑种的不确定性（死缓考验期满的法律后果有三种：执行死刑、减为无期徒刑、减为有期徒刑）；而对于特定的刑种而言，对犯罪分子判处不同的刑罚类别，都将产生相应特定的法律后果，这种结果的确定性都是与所适用刑罚本身的确定性紧密联系在一起的，尽管刑罚本身通常具有一定的幅度可供法官自由裁量，但这种相对不确定性只是就刑罚幅度而言，没有超离刑种本身，但死缓的法律后果却超越了不同的刑种。因此死缓不具备作为刑种应当具有的基本条件。 |
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| (2) Is This Punishment
A Means of Execution of Death Penalty |
| 2．死缓是否死刑的执行方法 |
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| Some scholars believe
that death sentence with a suspension of execution is a means
of execution of death sentence. To this belief, there exist
some criticism. Since the talk of a means of execution of
a death penalty would be more specifically focused on such
executable means as shooting, injection, hanging or gasification施毒气.
As in the case of a death penalty, no execution is enforced
as long as the life of the person to be penalized has not
yet been deprived of. Some scholars believe that this punishment
is one of the means of death penalty execution, after making
a literally corresponding study of “with a two-year reprieve”
and “death sentence for immediate execution”. But the two
are not so much corresponsive to each other. The difference
is not just a timing order of execution, for the legal consequences
of death sentence with a suspension of execution are two-sided,
namely capital punishment vs punishment against freedom, which
disqualifies this punishment as an executable means of death
penalty. We believe that the latter is a correct point of
view. In terms of determination of the legal nature, this
punishment is a specific system of enforcement, rather than
an executable means, of death penalty. |
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| 在学界有一种观点认为，死缓是死刑的一种执行方法。有的学者对此作了批评，指出人们谈及死刑的执行方法时，往往是就死刑具体采用枪决，还是注射、绞刑、施毒气等而言的。对于死刑这种刑罚来讲，未剥夺受刑人的生命，就不能叫作执行死刑。从对应性上看，有的学者是从“缓期两年执行”与“死刑立即执行”相对应的角度来说明死缓是死刑的执行方法之一，但二者实际上并不完全对应，因为这二者不是单纯执行时间先后的问题，而是死缓具有生命刑与自由刑法律后果的两重性，因而死缓不可能是执行死刑的一种方法。我们认为后一种观点是正确的，在法律性质定位上，死缓属于死刑的具体执行制度，但不能说是死刑的一种执行方法。 |
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| (3) Death Sentence
With A Suspension of Execution Differs From Probation |
| 3．死缓不同于缓刑 |
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| Ever since the
establishment, practice of probation has been highly appreciated
by the countries around the world, because this practice peels
off the imperfections of short-term punishment against freedom,
and highlights the economic and social aspects of punishment
imposable nowadays符合现代社会行刑经济化、社会化思潮之特点. The probation practice
currently adopted by the countries in criminal laws mainly
consists three types: suspended announcement of punishment,
suspended execution of punishment and suspended prosecution.
In Chinese Criminal Law, probation means suspended execution
of punishment. According to this practice of China, suspended
execution of punishment with a certain period of reprieve
is imposable on the criminal sentenced to less than 3 years
of imprisonment or to detention, subject to the judges’ determination
of the crime committed and criminal’s act of repentance, whereby
temporarily suspended execution of the original sentence is
determined not to constitute a real danger to the society.
In addition, the original sentence will not be executable
provided that the criminal has not committed any new crime
within the period of probation, nor has been found to have
evaded from a missed count of guilt或者未被发现漏罪, nor has violated
the laws, regulations or relevant rules. The original sentence
is not executed temporarily based on certain conditions and
remains executable in both cases of probation and death sentence
with a suspension of execution. In this regard, both practices
are identical to each other. Notwithstanding the aforesaid
common point, the differences are generally believed to be
predominant, in the following major aspects: (1) They differ
in applicable conditions. Application of death sentence with
a suspension of execution depends on the death penalty imposed
on the doer, while the applicability of suspended execution
of punishment on the sentence of the doer to detention or
a termed imprisonment of less than three years. (2) They differ
in the means of execution. The sentenced criminal punishable
for a suspended execution of the punishment will not be locked
up and will be on probation under the supervision by the public
security authority. The criminal punishable to death sentence
with a suspension of execution must be imprisoned and enforced
to accept education and reform through labor. (3) They differ
in the period of reprieve, The period of reprieve is two years
for death sentence with suspension of execution, while that
for suspended execution of punishment shall be determined
in view of the sentenced type of punishment and the sentenced
term. (4) They differ in the legal consequences. The legal
consequences for death sentence with a suspension of execution
will be either execution of death penalty or commutation (including
commuted to life imprisonment and a termed jail), while those
for suspended execution of punishment will be non-execution
of the original punishment; or revocation of the suspended
execution of punishment for a combination of preceding crime
and the subsequent crime in the principle of joinder of punishments
for plural crimes, or imprisonment as an execution of the
original punishment. |
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| 由于缓刑具有避免短期自由刑弊端、符合现代社会行刑经济化、社会化思潮之特点，自创立以来倍受各国的青睐。目前，各国刑法规定的缓刑主要有刑罚暂缓宣告、刑罚暂缓执行合缓予起诉三种。中国刑法中的缓刑属于刑罚暂缓执行，是指法院对于被判处3年以下有期徒刑、拘役的犯罪分子，根据其犯罪情节和悔罪表现，认为暂缓执行原判刑罚确实不致再危害社会的，规定一定的考验期，暂缓刑罚的执行，若犯罪分子在考验期内不再犯罪，或者未被发现漏罪，或者没有违反法律、法规及有关规定，原判刑罚就不再执行的制度。死缓与通常的缓刑都是有条件地暂不执行原判刑罚，而保留执行的可能刑，在这一点上，二者是相同的。但中国学界一般认为，二者的不同点是主要的，具体表现在：（1）适用前提不同。死缓的适用，以行为人被处死刑为前提；缓刑以行为人被判处拘役、3年以下有期徒刑为前提。（2）执行方法不同。对于被宣告缓刑的犯罪分子不进行关押，由公安机关负责考察；对被宣告死缓的人，必须予以关押，并实行劳动改造。（3）考验期限不同。死缓的考验期为2年；而缓刑的考验期，必须依所判刑种和刑期而确定。（4）法律后果不同。死缓的法律后果是：或者执行死刑，或者减刑（包括减为无期徒刑和有期徒刑）；缓刑的法律后果则是：或者原判刑罚不再执行，或者撤消缓刑，把前罪与后罪所判处刑罚，按照数罪并罚的规定处理，或者收监执行原判刑罚。
|
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| III. Legal Provision
and Application of Death Sentence With A Suspension of Execution
in China |
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| 三、中国死缓制度的法律规定与司法适用 |
| |
1. Applicable Conditions
According to Article 48 of the Criminal Code 1997, two preconditions
must be duly met before this punishment becomes applicable:
firstly, the crime committed deserves a death penalty, namely,
a crime punishable by death; secondly, an immediate execution
is not deemed necessary. Further to the second precondition,
with reference to the legal practices, an immediate execution
shall be deemed unnecessary under the following circumstances:
after a crime has been committed, the criminal surrenders
himself to justice, or performs meritorious services, or other
legally recognized circumstances; or an ordinarily well-behaved
person has committed incidentally an extremely serious crime
out of a criminal motive that is not exceptionally vicious;
or the victim is partially blamable, and the defender is not
blamable for all the consequences; or a crime has been committed
by the doer in a state of passion or out of righteous indignation;
or in case of a joint offense, the criminal, though one of
the principal offenders, has not committed the most serious
offense; or the criminal has an intelligent deficiency or
has a situation worthy of a sympathy, etc..其他令人怜悯情节的，等等
|
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（一）适用条件
根据1997年刑法典第48条的规定，适用死缓必须符合两个条件：其一，罪该处死，即应当判处死刑；其二，不是必须立即执行。结合司法实践，一般将以下情况视为“不是必须立即执行”的情形：犯罪后自首或者有立功表现的或者有其他法定任意情节的；平时表现较好，犯罪动机不十分恶劣，因偶然原因犯了特别严重罪行的；被害人一方有一定过错，责任不全在被告人的；行为人出于激情、义愤而实施犯罪的；在共同犯罪中虽是主犯之一，但不具有最严重罪行的；罪犯智力不健全的或有其他令人怜悯情节的，等等。 |
| |
| The challenges
to judicial practice include: the legal provision of the Criminal
Law of 1979 on the preconditions for application of death
penalty was revised in 1997, namely, “Death penalty shall
only be applied to the criminals guilty of the most heinous
and enormous crimes”, as was prescribed under Article 43 of
the Criminal Law of 1979, was revised to read “The death penalty
shall only be applied to criminals who have committed extremely
serious crimes.” It is worthy of a careful consideration to
determine the essential difference after the revision, the
purpose of the revision, whether or not the revision may carry
a more scientific and improved expression as compared with
the previous wording. We understand that “guilty of the most
heinous and enormous crimes”, as has been worded in 1979,
is not so strictly a legal phrasing indeed, which were literally
ambiguous and incompatible expressions that should be avoided
in a legal instrument. It is not good either to rephrase it
as “committed extremely serious crimes”, however. The wording
“committed extremely serious crimes” prescribed herein shall
be construed to include two important aspects, namely, the
objectively hazardous nature of the offense and the subjectively
malicious intention of the doer, as well as the hazardous
impacts on human body. |
| |
| 司法实践面临的问题是：1997年刑法在作为死缓适用前提的死刑条件法律表述上对1979年刑法作了修改，即由1979刑法第43条的
“死刑只适用于罪大恶极的犯罪分子”改为 “死刑只适用于罪行极其严重的犯罪分子”。这一修改有无实质性的变化？修改的初衷是什么？是否修改后的表述就比修改前的表述更加科学、完善？值得思考。我们认为，1979刑法中的“罪大恶极”一词确非严格的法律术语，存在着含义不明、用语不够严谨的弊端，需要修改，但将之修改为“罪行极其严重”并不妥当。实际上对这里的“罪行极其严重”仍应理解为包括犯罪行为的客观危害性及行为人的主观恶性与人身危险性都极其严重两个方面。 |
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| 2.
Post-Reprieve Process死缓期满后处理 |
| （二）死缓期满后处理 |
| |
| The following provisions
were made in the Criminal Law of 1979 in respect of the process
upon expiry of the reprieve for death sentence with a suspension
of execution: “if the criminal has been truly reformed, this
punishment shall be commuted to life imprisonment upon expiration
of the two-year reprieve. If the criminal has been truly reformed
and performed meritorious service, this punishment shall be
commuted to fixed term imprisonment of not less than 15 years
but not more than 20 years upon expiration of the two-year
reprieve. If it is verified that the criminal resists reformation
in a malicious manner, the death penalty shall be executed
upon verification or examination and approval of the Supreme
People’s Court.” |
| |
| 1979年刑法典对死缓期满后的处理作了如下规定：如果确有悔改，二年期满以后，减为无期徒刑；如果确有悔改并有立功表现，二年期满以后，减为15年以上20年以下有期徒刑；如果抗拒改造情节恶劣、查证属实的，由最高人民法院裁定或者核准，执行死刑。 |
| |
| In logic, this
provision is very poorly established. It does not expressly
specify how to proceed with those criminals who have not been
properly reformed, or who have not been properly reformed
nor performed any meritorious services, but who have not resisted
the reformation either nor performed any particularly wicked
behaviors. As a matter of fact, there are a large number of
cases of criminals who have not been subjectively reformed,
or have not accepted reformation with care and diligence,
or have not obviously resisted the reformation, or have resisted
reformation but have not created serious consequences. Such
cases are generally commuted to life imprisonment, which commutation
sounds practically reasonable but groundless as per law. From
Chinese legislative and judicial point of view, moreover,
having meritorious or major meritorious services refers heavily
to quite an objective circumstance, which can be addressed
on a case-by-case basis, and the significance of having been
properly reformed refers to a subjective and ideological matter.
Since, epistemologically, this significance is demonstrable
and cognizable through specific behaviors of the doer, it
would not be fully demonstrated, however, without lasting
or consistent pattern of behavior of the doer. Therefore,
one specific count of meritorious service of a criminal shall
not be taken as a representation of his being truly reformed.
In addition, a meritorious service does not necessarily mean
a complete reformation, although these two behavioral presentations
do not fight each other in general circumstances. According
to the logics stated as above, this provision will not be
applicable to the criminal who have not been properly reformed
but have performed meritorious services. In consideration
of the aforesaid, Article 50 of the revised criminal law has
specified two categories of the criminal circumstances during
the reprieve of a suspended execution of a death sentence,
namely, committing intentional or unintentional crime. More
specifically, the criminal who has not committed an intentional
crime during the two-year period of suspended execution of
death sentence, shall be commuted to a life imprisonment upon
the expiration of the said period. The criminal who has not
committed an intentional crime and have performed a major
meritorious service during the two-year period, shall be commuted
to a fixed term of imprisonment of not less than 15 years
but not more than 20 years. If it is verified that the criminal
has committed an intentional crime, the death penalty shall
be executed upon verification and approval of the Supreme
People’s Court. Having been specified as aforesaid, the provision
becomes more distributive than that prescribed under the revision
of 1979. But, the following problems do still arise, creating
certain headaches for application of the penalty.
|
| |
| 此条规定存在严重的逻辑漏洞，即对于既无悔改或无悔改和立功表现亦无抗拒改造情节恶劣表现的犯罪分子当如何处理没有明确规定，而事实上大量存在着犯罪人思想上不悔罪，但也不认真改造或抗拒改造不明显或虽抗拒改造但情节并不恶劣的情形，尽管司法实践大都将这种情形减为无期徒刑，而且具有实质的合理性，但毕竟于法无据。另外从我国的立法规定和司法实践来看，立功或重大立功在一定意义上更是一种客观情形，可以是一时一事的，悔改在存在意义上属于主观思想范畴，尽管在认识论上要通过行为人的具体行为去体现和认识，但必须通过行为人的一贯或长期的表现才能得以反映，因而不能用罪犯的某一个立功表现来代替他的悔改表现，犯罪人有立功表现未必就确有悔改，尽管通常情况下二者是一致的，这样若是犯罪人无悔改，但有立功表现的亦不在该条规定之列。基于以上原因，修订后的刑法第50条将死缓期间罪犯表现情形分为故意犯罪和没有故意犯罪两类，即在死缓执行期间没有故意犯罪的，二年期满后减为无期徒刑，没有故意犯罪且有重大立功表现的，二年期满后减为15年以上20年以下有期徒刑；如果故意犯罪，查证属实，由最高人民法院核准，执行死刑，从而克服了1979年刑法典在此问题规定上的不周延。但是，这一规定亦存在以下问题，并导致司法适用上的困难。 |
| |
| (1) This provision
has emphasized only that if the criminal has not committed
an intentional crime and have performed a major meritorious
service during the two-year period, death sentence with a
suspension of execution shall be commuted to a fixed term
of imprisonment of not less than 15 years but not more than
20 years. Apart from commutation to a life imprisonment, which
is equally applicable to the criminal committing no intentional
crime, nothing special is applicable, according to the revision,
to the criminal who has not committed intentional crime but
has performed meritorious service. As a result, life imprisonment
shall become equally applicable upon expiration of the two-year
period of reprieve to the criminal who has not committed intentional
crime but has performed meritorious service, and to the criminal
who has not committed intentional crime nor has performed
any meritorious service. This provision will not in the end
be encouraging to the criminals to become truly reformed.
|
| |
| （1）这一规定仅强调了没有故意犯罪且有重大立功表现的得减为15年以上20年以下有期刑，但是对于无故意犯罪且有立功表现的没有同样地作出与仅是没有故意犯罪减为无期徒刑的情形相区别的规定，导致无故意犯罪有立功表现的与无故意亦无立功表现的、二年期满后，都是无期徒刑的执行效果，不利于罪犯改过自新。
|
| |
| Compared with the
provision of the Criminal Code of 1979, which specifies: “If
the criminal has been truly reformed and performed meritorious
service, this punishment shall be commuted to fixed term imprisonment
of not less than 15 years but not more than 20 years upon
expiry of the two-year reprieve”, the revision has been made
to intensify the punishment of such criminal. |
| |
| 相对于1979年典刑法死缓执行期间“确有悔改并有立功表现，二年期满后减为15年以上20年以下有期徒刑”的规定，可以说加重了对该种罪犯的惩罚。 |
| |
| (2) The change
from the previous “resistance to reformation in a malicious
manner” to “committing an intentional crime,” has led to quite
many undesired effects, although it is helpful in restricting
the discretionary application of the judges as well as increasing
the judicial operability. |
| |
| （2）这一规定将原来的“抗拒改造情节恶劣”改为“故意犯罪”，尽管利于减少司法的任意性，增强司法的可操作性，但也存在诸多不合理之处。 |
| |
| First, this change
seems to have greatly reduced the application of death penalty,
but it is not the case in reality. In judicial practice, part
of the jailed resist education and reformation, humiliate
and insult the custodial officials, usually beat other prisoners,
or even threaten to kill the custodial officials, usually
commit incorrigible and salacious acts in the prison such
as sodomy, gang up in the prison, act as a master of the prisoners
and resist to perform labor. Prisoners with such acts have
not committed any intentional crime, but shall be deemed in
all respects to be “resistant to reform in a malicious manner”
as has been prescribed under the Criminal Code of 1979 whereby
death execution becomes applicable. According to the Criminal
Code of 1997, however, these criminals shall be commuted to
a life imprisonment upon expiration of two-year period of
reprieve. This serves to further substantiate the reduced
applicability of death sentence due to the revision. In the
meantime, there are some other criminals who show consistently
good behaviors, carefully observe the rules of the prison,
but are usually humiliated or beat by the jailed gangster,
and beat to injure the offenders out of indignation. These
prisoners shall be deemed to have committed again intentional
crimes during the period of reprieve and shall be executed
as per the provision of Criminal Code of 1997. But, as per
the Criminal Code of 1979, these criminals shall not be deemed
to be “resistant to reformation in a malicious manner”, therefore,
death execution is not applicable. This change shows the trend
of extended applicability of death sentence under the revision.
In view of the said latter circumstance, in particular, death
execution is applicable to those in compliance to the rules
of prison and with constant good behaviors, while it is not
applicable to those showing constant bad behaviors and serious
resistance to reformation. It fails to reflect the essential
purpose of death sentence with a suspension of execution,
and will not help to make the punishment really work as intended.
|
| |
| 首先，这一改动看似大大限制了死刑的实际适用范围，实则不然。司法实践中，一部分罪犯不服管教、辱骂管教干部，经常殴打他犯、甚至扬言杀害干部，经常于监内进行鸡奸等流氓猥亵活动，拉帮接伙、充当牢头狱霸以及抗拒劳动等等，这些人没有故意犯罪行为，但完全符合“抗拒改造情节恶劣”的情形，根据1979年刑法应当执行死刑，而按1997年刑法典的规定，则应在二年期满后减为无期徒刑。这也是这一修改实际缩小死刑适用范围的一面。但也有一部分罪犯一贯表现较好，认真遵守监规，但在狱内经常备受牢头狱霸的欺凌、殴打，最后出于激愤而将侵害人打伤的，按1997年刑法典属于死缓执行期间又故意犯罪的情形，应当执行死刑，而按1979年刑法典的规定，这种情况不应当属于“抗拒改造情节恶劣”的情形，因而不应执行死刑。这反映了此修改在一定程度上扩大死刑适用的倾向。在上述后一种情形中，一贯遵守监规表现较好的倒要执行死刑，而一贯表现不好、抗拒改造情节恶劣的反倒不执行死刑，有违死缓的基本精神，亦不利于实现刑罚的目的。 |
| |
| Secondly, according
to the Criminal Code of 1997, death execution shall forthwith
be applied to the criminals committing any kind of intentional
crimes, regardless of the criminal consequences. In general,
however, the subjective evil character of an intentional crime
is more serious than that of an unintentional one, and the
social impact of the former is much greater than that of the
latter. But the subjective evil character as well as the social
impact of an unintentional crime is not necessarily lighter
than those of an intentional one. According to the Criminal
Code of 1997, no execution shall be applied to the criminals
sentenced to death with a suspension of execution, who commit
unintentional crimes within the period of reprieve, no matter
how serious the crimes are nor how great the damages are incurred.
In logic, the death criminals shall be executed as long as
they commit intentional crimes during the period of suspension
of execution, regardless of the causes of the crimes, which
may be worthy of a sympathy, nor of the subjective evil character,
which may be very minor. By the same token, such death criminals
shall not be executed as long as they do not commit intentional
crimes during the period of suspension of execution, regardless
of their behaviors of the period, which may be extremely malicious,
nor of their unintentional acts, which may be extremely serious.
The result is a legal impartiality, which is detrimental to
the purpose of a statutory system. Thirdly, as has been mentioned
previously, the change from the previous “resistance to reformation
in a malicious manner” to “committing an intentional crime,”
is somewhat helpful in restricting the applicability of the
actual execution to the criminals sentenced death penalty
with a reprieve. It is an improper restriction taking into
account of the purpose of a criminal law that specifies death
sentence with a suspension of execution. Justice shall always
be maintained as the essential value of legal application,
as the call for restriction of death penalty has been increasing
worldwide, which outlines the right track as well for us to
follow. The change of Criminal Code of 1997 from the previous
“resistance to reformation in a malicious manner” to “committing
an intentional crime,” is against the intended legislative
purpose of the practice of death sentence with a suspension
of execution, and is harmful to the realization of the purpose
intended by this punishment. Death sentence with a suspension
of execution prescribed in the Criminal Code purports to give
the criminals a last chance to reform and mend themselves,
and, with an execution being applicable at any possible times,
serve as a power and deterrence to awake the criminals to
accept reformation for a new life. Where death execution depends
on the determination of an intentional crime committed during
the period of reprieve, this punishment will objectively lose
the power to force the criminals to be truly reformed, and
will connive or help the criminals to develop a negative state
of mind towards the reformation, for most of the criminals
sentenced to death with a suspension of execution would believe
“the punishment will be commuted to a life imprisonment upon
expiration of two-years of reprieve, regardless of the outcome
of the reformation”. Therefore, this punishment will fail
to help criminals to mend themselves as has been purposely
intended by law. |
| |
| 其次，按照1997年刑法典的这一规定，无论何种故意犯罪、其情节轻重如何，只要是故意犯罪，一律执行死刑。虽然一般情况下，故意犯罪的主观恶性要比过失犯罪严重，其社会危害性程度要比后者大，但有的过失犯的主观恶性和社会危害性未必比故意犯轻。而按照1997刑法典的规定，对死缓犯来说，在死缓执行期间，无论其过失犯罪的性质多么严重、造成的损失有多大，也一律不得执行死刑。如此一来，无论罪因如何，只要死缓犯在缓刑期间故意犯罪，即使其主观恶性很小，甚至有值得同情的事由，亦得执行死刑。而对没有再故意犯罪的死缓犯，无论在这两年期间表现得多么恶劣，无论其过失行为造成的后果多么严重，皆不得执行死刑。这将造成不公正，也不利于制度目的之实现。第三，前已指出，将“抗拒改造情节恶劣”改为“故意犯罪”，从死缓的适用效果看有利于一定程度的实际限制或减少死刑的适用。但从刑法规定死缓制度的宗旨看，这一缩小不妥当。虽限制死刑是当今世界刑法的趋势，亦应成为我国刑罚的价值取向，但在具体措施上应合乎公正合理要求。1997年刑法典将“抗拒改造情节恶劣”改为“故意犯罪”，有悖死缓制度的立法旨意，不利于行刑目的的实现。刑法规定死缓制度旨在为罪犯提供悔过自新和自救的最后机会，通过随时可能执行死刑的威慑与压力促其醒悟、迫其改造、以利更生。倘将死刑执行限以死缓期间犯故意之罪为条件，则客观上无以形成促其改造的威慑力量，难免纵容和助长其不服从改造的消极心理，“不论改造好坏两年后都减刑”是许多死缓犯的共同心理，如此则死缓制度无以实现促其自救本旨。
|
| |
| The above sections
are dedicated to the studies of the negative effects of the
change to “committing an intentional crime.” However, it requires
a more in-depth look at the subject in order to improve the
application of this punishment in such a way as to ensure
a reduced discretionary application, facilitate the judicial
operability, make the punishment work as intended, maintain
the spirit of impartiality, and to virtually restrict the
application of death penalty. |
| |
| 以上分析了改为“故意犯罪”后的消极后果，然而如何改善使之减少司法的任意性、方便司法操作，又合于死缓制度本旨，符合公平正义之要求，同时达到限制死刑实际适用之效果，颇值得研究。 |
| |
| 从理论上讲对死缓犯应执行死刑可存在于死缓执行期间犯故意之罪、过失之罪以及其他反映罪犯极端的主观恶性、抗拒改造情节恶劣的情形。但必须对这三种情形进行实质的限制，即应从死缓制度的设立宗旨出发，立足于死缓犯的主观恶性，考察其客观行为。这样对主观恶性不大情节并不十分严重的轻微故意犯罪不应当执行死刑；同样只有反映罪犯较大恶性性质严重的过失犯罪方可执行死刑。在此前提下，应作大量的实际调查，进行实证分析研究，比如，考察死缓犯所能实施的故意犯罪的罪种，列举罪犯抗拒情节恶劣的具体性状等。或许通过实证会发现实践中死缓犯过失犯罪的情形很少或者对之执行死刑的很少，则也可不列入过失犯罪的情形。但必须在上述原则下进行，防止图一时之便而一刀切的权宜之法。当然，以上是就立法的完善提出的一些初步看法。目前情况下，只能根据现行刑法典的规定，对死缓犯执行死刑的情形只有一种，即死缓执行期间犯故意之罪。 |
| |
| (3) This provision
does not explicitly specify the circumstances whereby the
criminal punishable for this penalty has performed major meritorious
service and has committed an intentional crime. Absence of
such express specification will cause conflict of applicability.
|
| |
| （3）这一规定没有就死缓执行期间既有重大立功表现又有故意犯罪的情形作出明确规定，从而导致法律适用的冲突。 |
| |
| If it is provided
that death execution shall be forthwith applied to the criminal
punishable for this penalty as long as he commits an intentional
crime within the period of suspension of execution, no matter
whether or not he has performed major meritorious services,
the provision will sound contradictory to the purpose intended
by this punishment, nor will it be helpful in reforming the
criminal. Application of this provision will shake and remove
the foundation of the criminal’ | | |
