死刑核准权归位后的程序正当性分析

死刑核准权归位是解决死刑核准权异化,根除下放所造成的立法矛盾和实务问题的惟一选择。死刑复核程序的诉讼化改造要求贯彻书面审和开庭审相结合,事实审与法律审相结合,书面审则实行阅卷与提审被告人相结合;立法应当明确赋予死刑复核程序中被告人的律师辩护权和当面陈述权;死刑复核程序仍然应当明确时限规定;检察机关有权对死刑复核程序实行法律监督,监督的方式是抗诉和检察建议;我国死刑复核程序不宜实行三审终审制改造,也不宜只实行法律审。

Due Process Analysis upon Retrieval of Power of Examination and Approval of Death Sentences

The retrieval of competence for examination and approval of death sentences is the only choice to resolve the problem of dissimilation of competence for examination and approval of death sentences and eradicate the legislative contradictions and problems of judicial practice caused by the transfer of the competence to a lower level.First,it will demand high normalization and legalization for procedure of first instance and the trial for procedure of second instance will become generalization and routinization.Second,it will be necessary to carry out the combination of adjudication in court and adjudication in writing and the combination of reviewing files and arraignment and the scope of prosecutorial protest must be strictly restricted.Third,the defense attorney ought to be given the right of defense and the right of statement in court and the time limitation should be explicitly prescribed but it is necessary to be in principle and flexible.Fourth,the prosecutorial organizations ought to have the authority to carry out legal supervision over the power of examination and approval of death sentences,and the proper patterns are counter appeals and advices from the prosecutorial organizations.Fifth,the proposals that it ought to turn the procedure for judicial review of death sentences into the procedure of third instance as the final trial or review the problems of law only are not proper for our judicial system.