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Death penalty cases of second instance Procedure

Author: MaShengLi
Tutor: PanJinGui
School: Southwest University of Political Science
Course: Procedural Law
Keywords: Death penalty The second trial Right
CLC: D925.2
Type: Master's thesis
Year: 2008
Downloads: 138
Quote: 1
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Abstract

Called for the abolition of the death penalty is increasingly becoming an international trend, but in accordance with the specific national conditions and the citizens of our present concept of the death penalty, the death penalty in China will continue to exist for some time. At present, China will not abolish the death penalty, through well-established procedures to achieve the purpose of State Power, theoretical and practical circles the joint efforts of a target, but also to better implement the \policy. This article is based on the above-mentioned purposes, the perspective of the death penalty cases of second instance procedures of the death penalty in China due process useful exploration of specific areas of the theory and practice of the death penalty procedures hoping to provide some reference. Text, in addition to the introduction and conclusion, the specific is divided into three parts: The first part is the basic theory of the death penalty cases of second instance procedures. This section defines the concept of the death penalty cases of second instance procedures. The death penalty cases of second instance procedures, after the first trial in capital cases, the general term of appeal or protest the second stage of trial proceedings and trial procedures related systems. Summary, the death penalty cases of second instance procedures, including the court's second trial activities, the second instance Procuratorate oversight activities of lawyers help activities and supporting activities; Second, describes the characteristics of the death penalty cases of second instance procedures, such as the particularity of the nature of the case, the program convergence particularity, the prosecution special supervision; and clarify the functions of the program of the death penalty cases of second instance, that is, to prevent a miscarriage of justice miscarriage of justice, to correct a miscarriage of justice miscarriage of justice; consistently less kill, be careful to kill policy; 3, to strengthen human rights protection. The second part of the reality of the death penalty cases of second instance procedures investigated. In this section, not only the reality of the death penalty cases of second instance procedures, also summed up the reality of foreign relief procedures on death penalty cases and significance. Laterally comparison, the death penalty cases of second instance procedures following problems: 1. The second instance jurisdiction exist dummy. In China's judicial practice, the procedure of second instance is hardly an \often up and down communication and exchange, a higher court to give lower courts guidance, leading to the judgment of the Court of First Instance has often reflect the views of the superior court. The second instance of the death penalty comprehensive hearing caused by work pressure, and implementation issues that affect the effectiveness of the proceedings. Trial does not mean that a fair trial, hearing of the death penalty cases of second instance procedures, increasing pressure on the Court's work, there must be conflict between the forces handling the case, there will be the problem of how to achieve the efficiency of the proceedings. Meanwhile, after the hearing of the death penalty cases of second instance procedures, the escort of those facing the death penalty, the trial deployment of forces, the organization of work, transport and other material security will be a problem. (3) the use of evidence in the course of the second instance of the death penalty, the Criminal Procedure Law standard of proof for criminal cases only a general provision, and there is no difference between the nature of the case and case proceedings. The death penalty is a life sentence, it is possible to deprive people of their right to life, the Criminal Procedure Law should clearly specify the standard of proof of death penalty cases. 4. Witness, expert court. Although the law requires witnesses and expert witnesses to testify in court, but for the witness to refuse to testify to the lack of appropriate mandatory court measures and undertake the necessary legal consequences. The procuratorial organs how to locate the second instance of the death penalty. For the position of the prosecution in criminal proceedings in China, There is much discussion in the theoretical and practical circles. A point of contention is that the procuratorial organs in the end is the Public Prosecution Service or organs for legal supervision, or fit with a dual nature. 6 \Objectively speaking, the lack of a direct appeal proceedings, the death penalty defendants the protection of human rights is also a barrier, may lead to the adverse consequences of victimizes and indiscriminate killings. By the common law and civil law countries, especially the U.S. death penalty death penalty relief program of study, summed up some worth learning practices. In the United States, death penalty cases, there is a direct appeal procedure, the death sentence regardless of whether the parties to an appeal, the judgment of first instance, by the Court of First Instance should be after the expiration of the prescribed period are reported directly to the competent court to force review; U.S. death penalty cases, the program highlights effectively help of a lawyer, stressed that the lawyer's due diligence, after a comparison of death penalty cases in the legal aid system is not difficult to find, which is China's death penalty procedure needs to be improved. The third part presents suggestions for improvement of the procedures of the death penalty cases of second instance. This section describes the main idea of ??the perfect death penalty cases of second instance: 1, to strengthen the independence of the lower court to avoid the phenomenon of the second instance of the dummy; trial how to deal with the complicated relationship with Jane in order to ensure the impartiality of the second instance of the death penalty and Efficiency, focused on the play of second instance goals and relief functions centered on appeal, protest grounds and was sentenced to the death penalty, the defendant and the application of the death penalty charges in the trial focused review, on this basis, undertake a comprehensive review of the first instance verdict, to improve the overall efficiency of the procedure of second instance; strengthen the help of lawyers in capital cases the defendant, to improve the quality of death penalty defense counsel to improve the legal environment, to refine the quality of death penalty defense standards to improve the quality of death penalty defense not only improve the problem of the quality of lawyers, investigative organs and procuratorial organs of the judiciary and the joint efforts; 4, improve the supporting system and death penalty cases of second instance procedures, establish and improve the witness identification protection, compensation and the swearing-in system, do a good job of those facing the death penalty, escort work, and so on; clear procuratorial organs dual functions of the second instance of the death penalty, to public prosecution and legal supervision functions; death penalty cases in China to establish direct appeal proceedings, even if the appeal the rights expressly waive the right to appeal, does not affect the active review of the superior court judgments of death, which is in line with the practice of the relevant documents of the United Nations.

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