| Empirical analysis shows that the understanding of Article 48 of the Chinese Criminal Law as meaning "the application of the death penalty is determined by the extent of liability and the immediate execution of death sentence is determined by the necessity of prevention" is not in conformity with judicial practice, and that the theoretical basis and practical effect of the scheme of judicial control of the death penalty based on this understanding is questionable. Currently China adopts a subtraction mechanism for the imposition of the death penalty in cases of intentional homicide:in cases in which intentional homicide resulting in the death of the victim, the death penalty is imposed in principle, unless there are enough mitigating circumstances; those who are sentenced to death are in principle executed immediately, unless there are enough mitigating circumstances for the suspension of the execution. In order to realize the judicial control of the death penalty, China should take the death of the victim as a necessary but not sufficient condition for the imposition of the death penalty, transform the subtraction mechanism into the addition mechanism, establish a strict system of aggravating circumstances for the imposition of the death penalty and an instructional system of mitigating circumstances for the exemption from the death penalty, so that in cases of intentional homicide resulting in the death of the victim, the death penalty with reprieve is imposed in principle, the death penalty with immediate execution is imposed only if there are aggravating circumstances, and no death penalty is imposed if there are mitigating circumstances and no aggravating circumstances. In cases with multiple circumstances, the final decision on the punishment should be made under the guidance of empirical analysis and the theory of punishment in light of actual circumstances of the case. |
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