A Study upon the Influence of the Legislation and Judicial Discretion of Death Penalty in ROC under International Covenant on Civil and Political Rights

• Main Authors: Chu,Yu-Yuan, 朱祐遠
• Other Authors: Chen, Li-Tung
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/7d28fv

碩士 === 國立臺灣海洋大學 === 海洋法律研究所 === 106 === Human rights, which are rights inherent to human beings, are universal and cannot be abridged and infringed arbitrarily by any society or government. The right-to-life is the foundation of all human rights. The death penalty deprives convicted criminals of their rights to live and separate them from society forever, which can be said to be the harshest punishment. In our country, since the “Act to Implement the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights” are promulgated and put in practice in 2009, government agencies at all levels should ensure and promote the realization of all human rights protected by the two covenants The judicial organ formulates standards of capital punishment different from the past based on the spirit of the protection of the right-to-life at article 6 of the “International Covenant on Civil and Political Rights”. For instance, it is forbidden to sentence and execute the death penalty to the physically and mentally disabled. Another example is the sentence of death may be imposed only for the most serious crimes. However, there is still something less than satisfactory in judicial practice. In our essay, the document analysis method, comparative research method and the historical research method are conducted in order to seek and construct a set of procedure and standard of the death penalty, which is fair, transparent, and suitable for our country and in accordance with both the two covenants and the sentencing theory. It can be referenced by future practice and legislation. In the conclusion of our essay, we make suggestions on the aspects of legislative rule of law and the practice of judicial sentence about the death penalty in our country. From the aspect of legislative rule of law, the legislative body should cooperate with the Ministry of Justice on the policy of the abolition of the death penalty; that is, its final goal is abolishing the death penalty. However, before the death penalty is abolished on the law, the first thing we should do is to abolish the death penalty on legal rules for crimes that do not cause death. It can be found on the “Criminal Code of the Republic of China”, “Narcotics Hazard Prevention Act”,” Civil Aviation Act“,” Criminal Code of the Armed Forces”, and” Controlling Guns, Ammunition and Knives Act” in our country. Secondly, the death penalty on the General Provisions of the Criminal Code should be restricted to direct and intentional murder crimes which cause death or other extremely severe result. To comply with the protection of right-to-life on the International Covenant on Civil and Political Rights, those who committed murder crimes with dolus indirectus or dolus indeterminatus should not be sentenced to death. Thirdly, we should add a rule to forbid to sentence and execute the death penalty to the physically and mentally disabled on the General Provisions of the Criminal Code. In 2005, the Human Rights Committee of the United Nations solemnly urge that for those signatories who do not abolish the death penalty or still administer the death penalty, must not sentence and execute the death penalty to the physically and mentally disabled on section 7, line item 3 of the resolution 2005/59. In our country, there are still cases of sentencing the death penalty to the physically and mentally disabled by the Supreme Court, which obviously violate the resolution of the Human Rights Committee mentioned above and thus the regulation should be stipulated on the General Provisions of the Criminal Code. Last, the Code of Criminal Procedure or the Amnesty Act should be amended in order to ascertain the inmates’ rights to seek pardon. From the aspect of the practice of judicial sentence, first, before the death penalty is abolished on the law, try not to sentence the death penalty to the greatest extent and must not sentence the death penalty to those who do not commit direct and intentional murder crimes. Secondly, in order to protect the right of audience and right to be heard of defendant, the defendant should be forced to be present and state a comment for the third instance in the case of death penalty Thirdly, the sentence of death penalty should be made unanimously by the judges of collegial panel. Fourthly, sentence of death should not be made for those crimes which do not comply with the conditions of the most serious crimes. Fifthly, the member of judgement should be changed between the conviction stage and the sentencing stage. Sixthly, the sentencing debates are not necessarily held on trials on matters of fact; however, at least for the case of death penalty, the sentencing debate should be held after the conviction stage, which should be amended in the future. Seventhly, for the case of death penalty, the prosecutor should recommend the sentence of death and propose information for sentencing in the first instance in order to give not only the defendant enough time to prepare sentencing information and evidence but also the court to investigate the sentencing information and evidence provided by the prosecutor and defendant. Last but not least, the prosecutor should give evidence about the subjective elements and the possibility of correction of the actors.