| 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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