我国死刑特赦制度研究
发布时间：2018-07-25 06:08
【摘要】：死刑特赦制度,是赦免制度的重要组成部分,同时也是死刑制度不可或缺的内容。在我国建立死刑特赦制度,符合逐步限制和废除死刑的立法趋势。本文在国内外学者关于赦免制度研究基础之上,从赦免、特赦、死刑特赦概念的界定着手,提出我国法律情景下的死刑特赦,即建议在我国建立的死刑特赦制度的概念,首先从概念入手明晰制度本身。在文章的第二部分,从国内和国外两个视角考察了死刑赦免制度,鉴于死刑赦免各国以及我国不同时期的规定不同,不是所有国家的死刑都只适用特赦。本文虽然定位在死刑特赦制度,却是从整个赦免制度的高度去研究死刑特赦。国际层面详细介绍了美国死刑行政赦免的规定,国内层面分阶段介绍了我国死刑赦免的规定以及建国初期七次特赦实践。文章后半部分论证其建立的理由,并且分析了我国建立死刑特赦制度需要厘清的两个疑难问题。之后又着重阐述了我国建立死刑特赦制度的具体内容设计,在立法路径、决定机关、适用范围和对象以及程序方面提出自己的见解。相较构建涵盖包括死刑在内的赦免制度,笔者认为在刑法中建立死刑特赦制度作为死刑制度的内容,并在刑事诉讼法中给予具体的程序规制,采取针对具体案件的特赦,严格限制适用范围,尤其明确禁止适用死刑特赦的罪行和案件,保留现行宪法关于特赦的规定并稍作改动,以降低现实修改法律的阻力,争取尽早在我国建立死刑特赦制度。在我国虽然法院、检察院依法独立行使职权,但是司法权不可能完全独立,最重要的是,没有充分监督的权利就像潮湿的阴暗面,更容易发霉和变质。因此,对死刑案件的特赦更是对死刑案件的司法权之外的监督,其目的是更好的保障司法运行的公平公正。文章中虽然对死刑特赦的适用案件做出了较明确的限制,但还是希望一方面能够发挥特赦的灵活性,不要把制度限制的太死板,另一方面防止死刑特赦制度的滥用。值得一提的是,本文主张赋予每个被判处死刑的犯罪人申请特赦的权利,在事关生命权的案件中,法律的公平比效率更重要。
[Abstract]:The system of pardon of death penalty is an important part of the system of pardon, and it is also an indispensable content of the system of death penalty. The establishment of the death penalty amnesty system in China accords with the legislative trend of gradually restricting and abolishing the death penalty. On the basis of the research on pardon system by domestic and foreign scholars, this paper begins with the definition of pardon, amnesty and death penalty amnesty, and puts forward the concept of death penalty amnesty under the legal situation of our country, that is, the concept of death penalty amnesty system proposed in our country. First of all, from the concept of clear system itself. In the second part of the article, the author examines the death penalty pardon system from both domestic and foreign perspectives. In view of the different provisions of the death penalty pardon countries and different periods of our country, not all countries only apply amnesty to the death penalty. Although this article focuses on the system of pardon of death penalty, it studies the amnesty of death penalty from the perspective of the whole system of pardon. At the international level, the provisions of administrative pardon of death penalty in the United States are introduced in detail. At the domestic level, the provisions of pardon of death penalty in China and the practice of seven special amnesties in the early days of the founding of the people's Republic of China are introduced. The second part of the article demonstrates the reasons for its establishment, and analyzes two difficult problems that need to be clarified in establishing the death penalty amnesty system in China. After that, the author emphatically expounds the concrete content design of establishing the system of pardon of death penalty in our country, and puts forward his own opinions in the aspects of legislative path, deciding organ, applicable scope and object, as well as procedure. Compared with the construction of amnesty system, including the death penalty, the author believes that the establishment of the death penalty amnesty system in the criminal law as the content of the death penalty system, and in the code of criminal procedure to give specific procedural regulation, to adopt amnesty for specific cases. Strictly limit the scope of application, especially explicitly prohibit the crimes and cases of the application of the death penalty amnesty, retain the provisions of the current constitution on amnesty and make minor changes, in order to reduce the resistance to the realistic amendment of the law, and strive to establish the system of amnesty of death penalty in our country as soon as possible. Although the procuratorates exercise their powers independently according to law in our courts, the judicial power cannot be completely independent. The most important thing is that the right without adequate supervision is like the damp dark side and is more prone to moldy and spoilage. Therefore, the amnesty of the death penalty case is the supervision outside the judicial power of the death penalty case, and its purpose is to better guarantee the fairness and justice of the judicial operation. Although there are some specific restrictions on the application of the death penalty amnesty, it is hoped that on the one hand, the flexibility of the amnesty can be brought into play, and the system should not be restricted too rigid, on the other hand, the abuse of the death penalty amnesty system should be prevented. It is worth mentioning that this article advocates that every person sentenced to death should be given the right to apply for amnesty. In cases concerning the right to life, the fairness of the law is more important than the efficiency of the law.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.1
本文编号：2142852
[Abstract]:The system of pardon of death penalty is an important part of the system of pardon, and it is also an indispensable content of the system of death penalty. The establishment of the death penalty amnesty system in China accords with the legislative trend of gradually restricting and abolishing the death penalty. On the basis of the research on pardon system by domestic and foreign scholars, this paper begins with the definition of pardon, amnesty and death penalty amnesty, and puts forward the concept of death penalty amnesty under the legal situation of our country, that is, the concept of death penalty amnesty system proposed in our country. First of all, from the concept of clear system itself. In the second part of the article, the author examines the death penalty pardon system from both domestic and foreign perspectives. In view of the different provisions of the death penalty pardon countries and different periods of our country, not all countries only apply amnesty to the death penalty. Although this article focuses on the system of pardon of death penalty, it studies the amnesty of death penalty from the perspective of the whole system of pardon. At the international level, the provisions of administrative pardon of death penalty in the United States are introduced in detail. At the domestic level, the provisions of pardon of death penalty in China and the practice of seven special amnesties in the early days of the founding of the people's Republic of China are introduced. The second part of the article demonstrates the reasons for its establishment, and analyzes two difficult problems that need to be clarified in establishing the death penalty amnesty system in China. After that, the author emphatically expounds the concrete content design of establishing the system of pardon of death penalty in our country, and puts forward his own opinions in the aspects of legislative path, deciding organ, applicable scope and object, as well as procedure. Compared with the construction of amnesty system, including the death penalty, the author believes that the establishment of the death penalty amnesty system in the criminal law as the content of the death penalty system, and in the code of criminal procedure to give specific procedural regulation, to adopt amnesty for specific cases. Strictly limit the scope of application, especially explicitly prohibit the crimes and cases of the application of the death penalty amnesty, retain the provisions of the current constitution on amnesty and make minor changes, in order to reduce the resistance to the realistic amendment of the law, and strive to establish the system of amnesty of death penalty in our country as soon as possible. Although the procuratorates exercise their powers independently according to law in our courts, the judicial power cannot be completely independent. The most important thing is that the right without adequate supervision is like the damp dark side and is more prone to moldy and spoilage. Therefore, the amnesty of the death penalty case is the supervision outside the judicial power of the death penalty case, and its purpose is to better guarantee the fairness and justice of the judicial operation. Although there are some specific restrictions on the application of the death penalty amnesty, it is hoped that on the one hand, the flexibility of the amnesty can be brought into play, and the system should not be restricted too rigid, on the other hand, the abuse of the death penalty amnesty system should be prevented. It is worth mentioning that this article advocates that every person sentenced to death should be given the right to apply for amnesty. In cases concerning the right to life, the fairness of the law is more important than the efficiency of the law.
【学位授予单位】：中国社会科学院研究生院
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924.1
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