Japan's death penalty system, status and prospects of China's death penalty system3419.doc

Japan's death penalty system, status and prospects of China's death penalty system Key words: death penalty; repealed; the status quo; Prospect Summary: The Japanese Penal Code provides only for more than 10 kinds of crimes the death penalty can be applied. Judicial application of the death penalty in Japan who is extremely cautious attitude. Japanese criminal law scholars on the question of retention or abolition of the death penalty is still heated debate, scholars have largely held, "the time too early on the Abolition of the death penalty," and that the abolishment of the death penalty should also be a special alternative to the death penalty legal measures. Japan and even in death penalty abolition of battle there are deviations in the methodology, we shift the focus of future research should be an objective analysis of the pros and cons of the death penalty applicable to study and demonstrate the conditions for abolishing the death penalty should have, as well as abolish the death penalty should be used alternative measures. In China, the need to abolish the death penalty after a very long period of time, at this stage should be strictly limited the application of the death penalty as our basic national policies.       I have been training in recent years, Japan, on Japan's death penalty system as a bit of study. Understanding of Japan's death penalty system, taking into account the status of the thinking of China's reform and development of the death penalty system, problems may be some benefits, for a brief introduction to the reader, combined with China's national conditions, to talk about some of my feelings about the death penalty system in China as prospects.          First, the status of Japan's death penalty system      (A) legislative and judicial overview      Japan is still retain the death penalty. Japan's current Criminal Code provisions in 12 of the Statutory Sentence includes the death penalty, that the following crimes the death penalty can be applied: (1) sedition (article 77, paragraph 1); (2) induced the media raided (Article 81); (3) Assistance to the media raided (Article 82); (4) and currently residing in buildings, and arson (Article 108); (5) explosive offense (art. 117); (6) Baptist injury and currently residing in buildings, etc. crimes (Article 119); (7) subversion trains homicide (article 126, paragraph 3); (8) the threat of Consequential Aggravated Criminal traffic offenses (Article 127); (9) watercourses homicide by poisoning (No. 146); (10) homicide (Article 199); (11) robber homicide (Article 240); (12) bandits rape homicide (Article 241). In addition, there are four special law provisions of the Statutory Sentence contains the death penalty, that the following crimes for the death penalty can be applied: (1) the use of explosives offense ( "Penalties against explosives," Article 1); (2) Duel lethal crime ( "The duel of the law" Article 3); (3) seizure of aircraft and other lethal crime ( "The crime of hijacking of aircraft and other law" in article 2); (4) to enable the aircraft crash killed crime ( "The Taking of Aircraft such as the crime of the law "in article 2, paragraph 3); (5) the crime of killing of hostages (" hostage-taking and other acts relating to punishment of the law "Article 4). Article in the above method, only the Criminal Code, Article 81 provided for the media raided induced death is absolutely determined Statutory Sentence, while for other offenses under the death penalty only can select the applicable penalties. Moreover, according to Japan's "Juvenile Law" Article 51 provides that the commission of the crime under the age of 18 years of age shall not be sentenced to death. It is also necessary to mention that Japan correct the draft penal code although retaining the death penalty could apply the death penalty, but reduce the scope of crimes is limited to civil strife of the masterminds of the crime (article 117), induced the media raided (No. 122) assistance to the media raided (No. 123), the explosive blast homicide (article 170, paragraph 2), homicide (Article 255), a bandit homicide (article 328), and the robber to death of rape crimes (article 329 Article 2).      After World War II, the Japanese court held the application of the death penalty particularly cautious death penalty cases as a whole on a downward trend. According to statistics, from 1945 to 1997 for 50 years, Japan declared only 718 criminals to death, the actual implementation of the death penalty was only 609 people. Especially since the seventies of last century, except for one year (1988), the annual number of criminals sentenced to death in less than 10, less than an average of 4.2 people. 1 was sentenced to death for crimes committed mainly in murder and robbers to death (including a bandit killing) on the crime. If sentenced to death in 1998, a total of seven people, including five persons who have committed murder, committed the crime of robbers who killed two people. 2, but over the years for the crime of the death penalty, most often the crime of robbers to death, followed by homicide. From the trend of recent years, Japanese jurisprudence of view, "the prosecution of the death penalty is a very positive attitude, but the highest court is holding the attitude of a very prudent and Modesty", there is a tendency to try to limit the application of the death penalty. 3 the highest court in a 1983 case in the selection of the death penalty is defined benchmarks, namely, "to retain the death penalty under the existing legal system, a comprehensive study of the nature of the crime, motive, form, in particular the killing of the means method of obdurate, cruel, the result of a significant nature, especially the number of victims were killed, the bereaved family of the victim emotional and social impact of the Order of prisoners, criminal record, after committing a crime, after the performance of a variety of circumstances, in that the their guilt indeed significant, whether from the position of balance of crime or from the general preventive point of view, have had capital punishment, it should be said to have allowed to choose the death penalty. "4      (B) the retention or abolition of the death penalty dispute the background of      Japan is now the issue of retention or abolition of the death penalty, the most controversial one of the countries. As early as before World War II, Japan emerged on the death penalty abolished. In 1956 the partial changes in the Penal Code, there have been filed in Congress to abolish the death penalty all the motion, but Congress stopped deliberations and therefore did not consider the results. Since then, although Congress has not directly considered abolishing the death penalty and then the motion, but the civil movement initiated by the abolition of the death penalty was not interrupted. If 200-plus members of the "abolition of the death penalty Women's Council" in 1983, the Speaker of the House and Senate proposed abolition of the death penalty petition. 5 As for the scholars have published or published in scholarly writing on the abolition of the death penalty, with even more numerous. At the same time, there are many academics and the public objection, advocates continue to retain the death penalty. Resulting in half a century since the abolition of the death penalty issue, the formation of two sharply opposed the idea, and very influential.      Japan's public opinion survey shows that most of the general public in favor of retaining the death penalty. And the last ten years, the proportion of reservations Lun Zhesuo also on the rise. According to the Prime Minister in 1988 conducted a national opinion survey, I hope to retain the death penalty accounted for 66.5%, want to abolish the death penalty, 15.7%; according to the 1994 survey, accounted for 73.8% wish to retain the hope that abolished accounted for 13.6%; 6 According to the 1999 survey, wished to retain the death penalty, 79%, want to abolish accounted for 8.8%. 7 However, criminal law scholars in recent decades has been published on the death penalty abolition of academic works of view, the "death penalty system in a permanent need for theory" only a very small number of scholars (about 5%), while advocating repeal death penalty, the vast majority of scholars (about 95%). 8 The reason why public opinion polls appear to retain the death penalty is strong as the trend, mainly because Japan's economic slump over the past decade, crime rates increased, in particular, is similar to some members of Aum Shinrikyo released poison gas in the Tokyo subway killing one After the series of vicious crimes occurred, so that people worry about the peace of society, which was unwilling to abolish the death penalty. In Japan, criminal law scholars, there was a period of time, called for the immediate abolition of the death penalty a loud voice, including Shigemitsu Dando, including some well-known scholars have also drummed up support, but some members of Aum Shinrikyo to implement a large number of killings took place, due to the security situation has deteriorated momentum, coupled with public opinion in opposition to abolishing the death penalty, and thus "the timing is premature to say on the Abolition of the death penalty" has become Japan's criminal law, said the majority of scholars. 9      (C) on the retention or abolition of the death penalty and the reasons for      As early as the Enlightenment Beccaria were the first to put forward the theory of the death penalty abolished. In his view, the death penalty is the product of the social contract, the state is in a normal state, it should abolish the death penalty; with the death penalty's deterrent than life of liberty, the death penalty would provide an example of brutality, harmful to society. The death penalty save the commentators suggested that the general population Sharenchangming legal beliefs; death penalty has a great deterrent; once abolished the death penalty, heinous criminals will give the police, the criminal Service officials and even ordinary people's lives at risk; of the worst criminals the death penalty should be applied to make it completely isolated from society, and so on, are stored under the death penalty. 10      In Japan, the death penalty was abolished on the main issues surrounding the debate are as follows: (1) The State has the right to deprive the offenders of human life (philosophy of law point of view)? (2) whether the death penalty in general preventive function (criminal policy point of view)? (3) The death penalty is not referred to in section 36 of the Constitution's "cruel punishment" (the constitutional point of view)? (4) Since there is the possibility of miscarriage of justice, then declared the death penalty without remedy a violation of due process (due process point of view)?      First, the State has the right to deprive the offenders of human life issues, death penalty repeal argued that in modern society, human life as the highest value, should be protected by law, no one has the right to deprive persons of life. If the State has absolute value one life to the premise of the killings as a crime, but on the other hand the law provides for the death penalty by the state to deprive prisoners of life, that is, by the state to kill, this is contradictory. Moreover, countries apply the death penalty for criminals, in fact gives an example of providing a kill.      However, the death penalty argue that preservation of murderers and other heinous criminals should be sentenced to death, which is the national belief in a moral and even legal, or to meet people's feelings (the concept of retribution) needs. Abolition of the death penalty on the person to death by the state to kill in fact, to negate its legitimacy, it is not unreasonable. Because the state deprives an inmate's life while in the physical sense of commonality with the murder, but the commonality of the physical is not important on the social, legal sense, the death penalty and there are important differences between murder. For example, can not say that the state of liberty abduction, criminal penalties can not say that the state robber. Murder and the death penalty, the enforcement of fines and criminal bandits substantial difference, the former is illegal and improper behavior, which is a legitimate punishment for an offense punished. Should be considered the death penalty is law, the legitimacy of the most appropriate expression. 11      Secondly, with regard to whether the death penalty has a general preventive function of the problem, the death penalty repeal argued that a number of countries abolished the death penalty, abolished after the crime has not increased dramatically, indicating that capital punishment does not have a deterrent force, there is no general prevention functions, and thus there is no depositary necessary. Abolition of commentators have suggested that whether the death penalty has a deterrent force was not yet clear, and therefore should at least adopt a "suspect is not" attitude. Abolition of commentators have also pointed out that if the death penalty no deterrent, it would mean that other forms of punishment nor deterrence, therefore, should be affirmed that the death penalty has a deterrent. The question is whether the death penalty has a special deterrent, if it has not been confirmed, we can not serve as a legitimate means to suppress crime, to use, but it is impossible to prove. Although the death penalty for dangerous criminals, we can totally eliminate the possibility of recidivism, which is the death penalty clearly reflects the specific preventive effect, but the way to eliminate the possibility of recidivism There is also the death penalty is not the only absolute way. 12      However, to save the death penalty argue that the death penalty has a great deterrent, in order to prevent the vicious criminals harm to society, to maintain law and order, we must place our hopes for its deterrent force. Abolish the death penalty on those who in some countries abolish the death penalty after the crime has not increased, as the death penalty has no deterrent reason is inappropriate. Because a country abolished the death penalty often is always in social stability and harmony in society of the times, even abolished the death penalty, it will not lead to a sharp increase in crime; the other hand, the new addition of the death penalty, then most of the security situation deteriorated a time when social unrest, even the death penalty for many crimes section and sentenced to heavy penalties, often do not make crime decreased significantly. Therefore we can not abolish the death penalty does not increase crime, death penalty is an additional crime was not reduced (actually increased) to negate the death penalty has a