我国死刑缓期二年执行适用标准之探究
发布时间：2019-03-10 20:26
【摘要】：死刑缓期二年执行制度是我国所特有的一种死刑执行制度，对于限制死刑的适用，贯彻“少杀、慎杀”的刑事政策具有十分重要的现实意义。准确理解与把握死刑缓期二年执行适用的标准是司法实践中正确适用死刑缓期二年执行的前提，但是目前我国司法实践与学术研究中，对于死刑缓期二年执行适用标准的理解出现了某些问题。 由于死刑缓期二年执行与死刑立即执行之间的界限模糊，缺乏具体可操作性的标准，在具体的死刑判决中，法官适用死刑缓期二年执行的理由“丰富多彩”；理论研究中对死刑缓期二年执行的适用标准一般理解为具备法定或酌定从宽处罚情节，但不同学者表述不同，致使理论中的解释未形成基本统一而出现了混乱；此外，对于死刑缓期二年执行性质的定位也出现了不同的意见，多数人认为虽然我国刑法中没有明确将死刑缓期二年执行规定为独立的刑种，但是在实际应用过程中，已经将死刑缓期二年执行作为独立的刑种进行适用。 笔者认为上述观点是值得商榷的，死刑缓期二年执行的适用是以判处死刑为前提的，是死刑的下位概念，因此不可能与死刑并列成为独立的刑种。探究死刑缓期二年执行的适用标准，首先必须明确死刑缓期二年执行是死刑的一种执行方式，其本质上是一种缓刑，，只是其有自身的特殊性而已。厘清死刑缓期二年执行的本质内涵，对于研究其适用标准具有十分重要的意义。 全文结构由五个部分组成：第一部分是导言，主要就本文的写作背景以及写作目的进行论述；第二部分主要描述我国目前司法实践中死刑缓期二年执行适用的乱象，通过一系列死刑案件的分析，提出问题——死刑缓期二年执行适用的标准不明确，并分析死刑缓期二年执行适用标准不明确的原因以及由此带来的弊端。第三部分是对死刑缓期二年执行适用标准进行实证归纳，通过对死刑判决书的整理，做出相关的图表进行数据分析研究，在数据分析的基础上得出各种量刑情节对死刑缓期二年执行适用的影响比例。第四部分笔者对死刑缓期二年执行适用的理论基础进行了论述，主要是对前人研究成果的分析归纳，从中获取相关理论借鉴。最后笔者在前文研究的基础上归纳出六种死刑缓期二年执行的适用标准：（1）具有法定从宽处罚情节的一律不应判处死刑立即执行；（2）被害人具有重大过错的一般不应判处死刑立即执行；（3）经济型或非暴力型犯罪中积极退赃退赔的一般不应判处死刑立即执行；（4）共同犯罪中起次要作用的犯罪分子一般不应判处死刑立即执行；（5）被害人谅解的可以不判处死刑立即执行；（6）暴力型犯罪中对被害人家属进行经济补偿的要慎用死刑缓期二年执行。
[Abstract]:The system of two-year suspended execution of death penalty is a special execution system of death penalty in our country. It is of great practical significance to restrict the application of death penalty and to carry out the criminal policy of "kill less and kill cautiously". Accurate understanding and grasping the standard of application of two-year suspended execution of death penalty is the premise of correct application of two-year suspended execution of death penalty in judicial practice, but at present, in our country's judicial practice and academic research, Some problems arise in the understanding of the applicable criteria for a two-year suspension of the death penalty. Because of the ambiguity between the two-year suspended execution and the immediate execution of the death penalty, and the lack of specific operational standards, the reasons for the judge to apply the two-year suspension of the death penalty in the specific death sentence are "rich and colorful". In theoretical research, the applicable standard of two-year suspended execution of death penalty is generally understood as having statutory or discretionary leniency of punishment, but different scholars have different expressions, which leads to confusion in the interpretation of the theory which has not formed the basic unity. In addition, there are different opinions about the nature of the two-year suspended execution of the death penalty. Most people think that although the suspended death penalty two-year execution is not explicitly defined as an independent type of punishment in the criminal law of our country, but in the process of practical application, The death penalty has been suspended for two years as an independent sentence. The author thinks that the above-mentioned viewpoint is open to question. The application of the death penalty suspended for two years is based on the death penalty, which is the inferior concept of the death penalty. Therefore, it is impossible to join the death penalty with the death penalty to become an independent type of punishment. To probe into the applicable standard of two-year suspended execution of death penalty, we must first make clear that two-year suspended execution of death penalty is a kind of execution mode of death penalty, and its essence is a kind of suspended sentence, but it only has its own particularity. Clarifying the essence of two-year suspended execution of death penalty is of great significance to the study of its applicable standard. The structure of the full text consists of five parts: the first part is the introduction, which mainly discusses the writing background and the purpose of this paper; The second part mainly describes the confusion of the application of the two-year suspended execution of the death penalty in the current judicial practice in our country. Through the analysis of a series of death penalty cases, it puts forward the question that the applicable standard for the two-year suspended execution of the death penalty is unclear. And analyzes the reasons why the two-year suspended execution standard is not clear and the malpractice brought about by the application of the two-year suspension of the death penalty. The third part is to carry on the empirical summary to the death penalty suspension two-year execution application standard, through to the death penalty judgment arrangement, makes the relevant chart to carry on the data analysis research. On the basis of data analysis, the influence ratio of various circumstances of sentencing to the application of two-year suspended execution of death penalty is obtained. In the fourth part, the author discusses the theoretical basis of the application of the two-year suspended execution of the death penalty, which is mainly the analysis and induction of previous research results, from which the relevant theories can be used for reference. Finally, on the basis of the previous study, the author sums up six applicable standards of two-year suspended execution of death penalty: (1) all cases with legal leniency should not be sentenced to death penalty immediately; (2) the death penalty shall not be imposed immediately when the victim has made a serious mistake; (3) in economic or non-violent crimes, the death penalty shall not be imposed immediately; (IV) criminals who play a secondary role in joint crimes should not, in general, impose the death penalty immediately; (v) where the victim understands that the death penalty may not be imposed immediately; (6) the death penalty should be suspended for two years to compensate the families of victims in violent crimes.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.13;D925.2
本文编号：2437988
[Abstract]:The system of two-year suspended execution of death penalty is a special execution system of death penalty in our country. It is of great practical significance to restrict the application of death penalty and to carry out the criminal policy of "kill less and kill cautiously". Accurate understanding and grasping the standard of application of two-year suspended execution of death penalty is the premise of correct application of two-year suspended execution of death penalty in judicial practice, but at present, in our country's judicial practice and academic research, Some problems arise in the understanding of the applicable criteria for a two-year suspension of the death penalty. Because of the ambiguity between the two-year suspended execution and the immediate execution of the death penalty, and the lack of specific operational standards, the reasons for the judge to apply the two-year suspension of the death penalty in the specific death sentence are "rich and colorful". In theoretical research, the applicable standard of two-year suspended execution of death penalty is generally understood as having statutory or discretionary leniency of punishment, but different scholars have different expressions, which leads to confusion in the interpretation of the theory which has not formed the basic unity. In addition, there are different opinions about the nature of the two-year suspended execution of the death penalty. Most people think that although the suspended death penalty two-year execution is not explicitly defined as an independent type of punishment in the criminal law of our country, but in the process of practical application, The death penalty has been suspended for two years as an independent sentence. The author thinks that the above-mentioned viewpoint is open to question. The application of the death penalty suspended for two years is based on the death penalty, which is the inferior concept of the death penalty. Therefore, it is impossible to join the death penalty with the death penalty to become an independent type of punishment. To probe into the applicable standard of two-year suspended execution of death penalty, we must first make clear that two-year suspended execution of death penalty is a kind of execution mode of death penalty, and its essence is a kind of suspended sentence, but it only has its own particularity. Clarifying the essence of two-year suspended execution of death penalty is of great significance to the study of its applicable standard. The structure of the full text consists of five parts: the first part is the introduction, which mainly discusses the writing background and the purpose of this paper; The second part mainly describes the confusion of the application of the two-year suspended execution of the death penalty in the current judicial practice in our country. Through the analysis of a series of death penalty cases, it puts forward the question that the applicable standard for the two-year suspended execution of the death penalty is unclear. And analyzes the reasons why the two-year suspended execution standard is not clear and the malpractice brought about by the application of the two-year suspension of the death penalty. The third part is to carry on the empirical summary to the death penalty suspension two-year execution application standard, through to the death penalty judgment arrangement, makes the relevant chart to carry on the data analysis research. On the basis of data analysis, the influence ratio of various circumstances of sentencing to the application of two-year suspended execution of death penalty is obtained. In the fourth part, the author discusses the theoretical basis of the application of the two-year suspended execution of the death penalty, which is mainly the analysis and induction of previous research results, from which the relevant theories can be used for reference. Finally, on the basis of the previous study, the author sums up six applicable standards of two-year suspended execution of death penalty: (1) all cases with legal leniency should not be sentenced to death penalty immediately; (2) the death penalty shall not be imposed immediately when the victim has made a serious mistake; (3) in economic or non-violent crimes, the death penalty shall not be imposed immediately; (IV) criminals who play a secondary role in joint crimes should not, in general, impose the death penalty immediately; (v) where the victim understands that the death penalty may not be imposed immediately; (6) the death penalty should be suspended for two years to compensate the families of victims in violent crimes.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.13;D925.2
【参考文献】
相关期刊论文 前4条
1 夏勇;;死缓适用条件之反思——以“李昌奎案”为例[J];法商研究;2013年01期
2 魏昌东;;美国司法型死刑控制模式与中国借鉴[J];法学;2013年01期
3 张曙光;;死缓适用条件明确化研究[J];山东师范大学学报(人文社会科学版);2008年05期
4 孙万怀;;公开固然重要,说理更显公正——“公开三大平台”中刑事裁判文书公开之局限[J];现代法学;2014年02期
相关博士学位论文 前1条
1 何显兵;死缓制度研究[D];中国政法大学;2009年
本文编号：2437988
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2437988.html
