我國(guó)死刑特赦制度研究
發(fā)布時(shí)間：2018-07-25 06:08
【摘要】：死刑特赦制度,是赦免制度的重要組成部分,同時(shí)也是死刑制度不可或缺的內(nèi)容。在我國(guó)建立死刑特赦制度,符合逐步限制和廢除死刑的立法趨勢(shì)。本文在國(guó)內(nèi)外學(xué)者關(guān)于赦免制度研究基礎(chǔ)之上,從赦免、特赦、死刑特赦概念的界定著手,提出我國(guó)法律情景下的死刑特赦,即建議在我國(guó)建立的死刑特赦制度的概念,首先從概念入手明晰制度本身。在文章的第二部分,從國(guó)內(nèi)和國(guó)外兩個(gè)視角考察了死刑赦免制度,鑒于死刑赦免各國(guó)以及我國(guó)不同時(shí)期的規(guī)定不同,不是所有國(guó)家的死刑都只適用特赦。本文雖然定位在死刑特赦制度,卻是從整個(gè)赦免制度的高度去研究死刑特赦。國(guó)際層面詳細(xì)介紹了美國(guó)死刑行政赦免的規(guī)定,國(guó)內(nèi)層面分階段介紹了我國(guó)死刑赦免的規(guī)定以及建國(guó)初期七次特赦實(shí)踐。文章后半部分論證其建立的理由,并且分析了我國(guó)建立死刑特赦制度需要厘清的兩個(gè)疑難問題。之后又著重闡述了我國(guó)建立死刑特赦制度的具體內(nèi)容設(shè)計(jì),在立法路徑、決定機(jī)關(guān)、適用范圍和對(duì)象以及程序方面提出自己的見解。相較構(gòu)建涵蓋包括死刑在內(nèi)的赦免制度,筆者認(rèn)為在刑法中建立死刑特赦制度作為死刑制度的內(nèi)容,并在刑事訴訟法中給予具體的程序規(guī)制,采取針對(duì)具體案件的特赦,嚴(yán)格限制適用范圍,尤其明確禁止適用死刑特赦的罪行和案件,保留現(xiàn)行憲法關(guān)于特赦的規(guī)定并稍作改動(dòng),以降低現(xiàn)實(shí)修改法律的阻力,爭(zhēng)取盡早在我國(guó)建立死刑特赦制度。在我國(guó)雖然法院、檢察院依法獨(dú)立行使職權(quán),但是司法權(quán)不可能完全獨(dú)立,最重要的是,沒有充分監(jiān)督的權(quán)利就像潮濕的陰暗面,更容易發(fā)霉和變質(zhì)。因此,對(duì)死刑案件的特赦更是對(duì)死刑案件的司法權(quán)之外的監(jiān)督,其目的是更好的保障司法運(yùn)行的公平公正。文章中雖然對(duì)死刑特赦的適用案件做出了較明確的限制,但還是希望一方面能夠發(fā)揮特赦的靈活性,不要把制度限制的太死板,另一方面防止死刑特赦制度的濫用。值得一提的是,本文主張賦予每個(gè)被判處死刑的犯罪人申請(qǐng)?zhí)厣獾臋?quán)利,在事關(guān)生命權(quán)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.
【學(xué)位授予單位】：中國(guó)社會(huì)科學(xué)院研究生院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D924.1
本文編號(hào)：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.
【學(xué)位授予單位】：中國(guó)社會(huì)科學(xué)院研究生院
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2015
【分類號(hào)】：D924.1
【參考文獻(xiàn)】
相關(guān)期刊論文 前3條
1 蔣娜;;寬嚴(yán)相濟(jì)刑事政策下的死刑赦免制度研究[J];法學(xué)雜志;2009年09期
2 賴早興;;美國(guó)行政赦免制度及其對(duì)死刑執(zhí)行的限制[J];河北法學(xué);2006年04期
3 利子平,竹懷軍;死刑赦免:限制死刑的一種新選擇[J];南昌大學(xué)學(xué)報(bào)(人文社會(huì)科學(xué)版);2004年05期
相關(guān)碩士學(xué)位論文 前1條
1 李建華;論我國(guó)死刑赦免制度之構(gòu)建[D];中國(guó)政法大學(xué);2008年
，本文編號(hào)：2142852
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