死缓限制减刑及其适用——以最高人民法院发布的两个指导案例为切入点
黎宏死缓限制减刑及其适用——以最高人民法院发布的两个指导案例为切入点
Restriction on Commutation of Death Penalty with a Reprieve and its Application
期刊名称：《法学研究》
期刊年份：
作者：黎宏
单位：清华大学法学院
中文关键词：死刑;死缓限制减刑;指导案例
英文关键词：death penalty;restriction on commutation of death penalty with a reprieve;guiding case
中文摘要：
死缓限制减刑是我国刑法中新增的死刑执行方式，最高人民法院发布的两个指导案例，对其适用的案件类型、适用步骤和条件进行了提示。但由于刑法规定本身存在争议，学界对死缓限制减刑的性质以及适用条件的研究不够，导致指导案例在相关事实的评价上缺乏均衡，所得出的结论也有违反禁止溯及既往原则之嫌。死缓限制减刑的适用，必须在罪刑法定原则的约束下，结合其法律性质和立法意图，依据相关死刑政策以及量刑方法进行。
英文摘要：
As an innovation established by the Amendment Ⅷ, the Criminal Law of the People’s Republic of China has adopted restrictions on commutation depending on the circumstances of the crimes, which offers new option for execution of death penalty with a reprieve. It is significant that so far the Supreme People’s Court has released two guiding cases to clarify more details, including the applicable cases, procedures, and specific terms of the new option. There is no doubt that such a practice will be quite helpful to both interpret and execute the restrictions on commutation of death penalty with a reprieve.However, several contradictions still exist subtly in relevant legal provisions of criminal law, meanwhile there is a lack of qualified research regarding the legal attribute of the restriction on commutation, nor studies of its application conditions. As a result, conclusions of the two guiding cases conflict with each other unfortunately and make most people confused. In other words, it seems that two outcomes of sentencing in the guiding cases are totally disproportionate. In addition, these guiding cases also indicate a suspicious retrospective effect of criminal law, which is always strictly prohibited by the principle of legality.To guarantee a proper implementation of restrictions on commutation of death penalty with a reprieve, several factors and suggestions should be taken into consideration seriously in the judicial process. First and foremost, the principle of legality is supposed to be a foundation of criminal law which should also be obeyed all the time in sentencing as well as conviction. Secondly, to provide a better understanding of the new rules, a clear and explicit legal attribute determined by original legislature intent is necessary. At last, specific criminal policies and scientific approach should be considered and used.
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