The trial-level system is an important part of a country's judicial system. It refers to "a litigation legal system in which the judicial organs are set up within the establishment in accordance with the law, and the parties can appeal or the procuratorial organs can protest multiple times. A case After several court trials, the judgment and ruling will become legally effective. "[1] The trial level system plays a vital role in the criminal justice system, but Chinese scholars do not pay enough attention to it. Over the years, scholars have focused more on the study of specific systems, such as the reform of trial methods in first-instance procedures, how to improve the trial-level rate in second-instance procedures, the establishment of death penalty review circuit courts, etc. Few scholars have studied the trial-level system from a macro perspective. Reflect as a whole. Some people believe that "there cannot be a clear answer to the debate about the third-instance and final-instance system or the two-instance final adjudication system... Studying the second-instance procedure from the trial-level system has great theoretical limitations, and its research horizons can only touch the outside of the second-instance procedure. In terms of rationality, the more realistic issue of whether the second instance procedure itself is reasonable cannot be fully discussed. "[2]
It is true that the study of the trial level system may not touch on the second instance procedure, death penalty review procedure and Each specific system and detail of the trial supervision procedure, but from the macro perspective of the trial-level system, studying the first-instance procedure, the second-instance procedure, the death penalty review procedure and the trial supervision procedure, it is completely understandable why the above-mentioned system is full of problems in practice. Of course, the author is not opposed to studying specific systems, but I am worried that studying specific operability and improvement issues will not help fundamentally reform the status quo, and even the introduction of specific good policies will be swallowed up by traditional habits. Therefore, this article attempts to reflect on and reconstruct the review system from the perspective of fairness and efficiency, and brings the above specific systems into the research field, in order to find a solution to the problem from a macro perspective.
1. The historical evolution of the current trial level system
There are currently four levels of courts in our country, and the "two-instance system" is implemented, which means that a case can be heard by up to two people's courts. The end of the review system. [3] The current system has experienced a long historical evolution.
As early as the democratic revolution period, a complaint system has been set up in the litigation procedures of various revolutionary base areas, and it has been clearly stipulated in relevant laws and regulations. The "Sino-Soviet Judicial Procedure" promulgated in 1934 stipulates that "if the district is the first-instance authority, the county is the final-instance authority; the county is the first-instance authority, and the province is the final appeal authority; the province is the first-instance authority, and the Supreme Court is the final authority.?… The Supreme Court is the final judicial organ in the trial process. "[4]
During the Anti-Japanese War, the anti-Japanese base areas basically implemented a second-instance and final appeal system. Some base areas have implemented an appeal system where the third instance is the final instance. For example, in 1942, the Shaanxi-Gansu-Ningxia Border Region once changed to a three-instance system, that is, the Border Region Adjudication Committee was at the third-instance level and accepted criminal and civil appeal cases that were not satisfied with the first or second instance of the Border Region High Court. [5]
During the War of Liberation, the appeal system of second instance and final appeal continued to be implemented in the liberated areas. Some regions stipulate that under special circumstances, a third trial of some cases is allowed. [6]
After the founding of the People's Republic of China, the "Interim Regulations on the Organization of the People's Courts of the People's Republic of China" promulgated in 1951 stipulates: "The People's Courts basically implement a three-level two-instance system, with the County-level People's Court as the first The court of first instance; under normal circumstances, the second instance is the final instance, but under special circumstances, the third instance or the first instance can be the final instance." It can be seen that the trial level system during this period was based on the second instance, with the first and third instance as exceptions. Hierarchy system. The "Organic Law of the People's Courts of the People's Republic of China" promulgated in 1954 abolished the special provisions and clearly stipulated that the People's Courts shall implement the second instance and final adjudication system. This abolishes the third instance and first instance exceptions to the formal legal system. Since then, the final judgments of both trials have been established as a formal legal system.
Article 7 of the 1979 Criminal Procedure Law, Article 12 of the People’s Court Organization Law, and Article 10 of the 1996 revised Criminal Procedure Law stipulate: “When hearing cases, the People’s Court shall implement a two-instance system.”
Why adopt the "two-trial and final-trial system"? The mainstream views in academic and judicial circles generally explain it this way: [7]
1. In line with China’s national conditions. China is a country with vast territory and inconvenient transportation.
Courts at the county, district and provincial levels are far apart, so it is not appropriate to concentrate too many cases in provincial courts for final hearing. If a case moves from a county or region to a province, the parties and other litigation participants will inevitably have to go to court, run here and there, and travel long distances, which will affect production and work.
2. Convenience to the masses. Relying on the masses is the basic line that our country must follow to complete all work, and it is also the basic principle of our country's criminal procedure law. According to my country's court jurisdiction regulations, except for a few major cases that are heard by courts at or above the provincial level, the vast majority of cases are heard by courts at the county and regional levels. The implementation of the second instance and final instance systems enables most cases to be resolved in county and district courts. Generally speaking, the county seat is close to the region, which makes it easier for case investigators to rely on the masses to investigate and verify the case, summon parties and witnesses for interrogation and appear in court, and is also conducive to the openness of trials, legal education to the masses, and mass supervision.
3. It is conducive to timely punishment of crimes and protection of the legitimate rights and interests of the parties involved. The implementation of the second-instance appeal system not only protects the appeal rights of the parties, but also simplifies the litigation procedures and reduces repeated trials. The claims of the parties, whether it is factual determination or legal application, can be correctly resolved together through comprehensive review, including some other legal issues that may arise in the first-instance judgment. Prompt handling of cases helps punish crimes and correct mistakes.
The mainstream view also acknowledges that the two-instance and final-instance system reduces one procedure compared to the three-instance and final-instance system, reduces the chances of the parties to appeal again, and may have an impact on the quality of the case and the legitimate rights and interests of the parties. But they also believe that the two-instance system stipulated in the Criminal Procedure Law can fully guarantee the quality of the trial. The reasons are as follows:
1. my country’s second instance procedure implements the principle of comprehensive review. The principle of comprehensive review requires the people's court of second instance to conduct a comprehensive review and consideration of the facts, evidence, conviction and sentencing of the entire case when hearing appeals and protest cases. The court of second instance implements the principle of comprehensive review, which is of great significance for implementing the policy of punishing the guilty and ensuring the smooth completion of the procedural tasks of the second instance.
2. The review process of death penalty cases can ensure the quality of death penalty cases. After the final judgment of the second instance, the death penalty case must be reported to the Higher People's Court or the Supreme People's Court for review, even if the defendant does not appeal. At the same time, it must be submitted to the review process before it can be implemented, thus effectively ensuring the correct handling of particularly major cases.
3. my country’s trial supervision procedures have powerful error correction functions. The people's courts can initiate trial supervision procedures for final judgments that have become legally effective, and the procuratorial organs can correct erroneous judgments to a considerable extent by exercising legal supervision. Moreover, if the parties are dissatisfied with the judgment after it takes effect, they can appeal.
Second, the current situation of the review system—both fairness and efficiency are damaged.
The mainstream view refers to my country's current trial level system as the "two-trial-final-trial system." However, when legislators formulated this system, they had deep doubts about whether this trial-level system could operate effectively. In order to ensure the effective operation of the two-instance system, legislators also place their hopes on China's unique death penalty review procedures and strong trial supervision procedures. As mentioned above, legislators and mainstream views believe that these systems can ensure the effective operation of the second-instance and final-instance systems, but they are counterproductive. Legislators' worries still exist - the operation of the death penalty review process and trial supervision process in practice has ruthlessly shattered the legislators' beautiful illusions. What the reality shows us is not the "two-instance and final-instance" trial-level system that can both punish crimes and protect the rights and interests of the parties and is in line with China's national conditions, but one in which "two-instance and final-instance system is the main body, supplemented by the death penalty review process and the trial supervision process." review system. Moreover, what is even more embarrassing for legislators is that even such a review system is so devastated in practice that it can only become a "discursive description" and cannot become a real operation.
The current status of my country's trial system can be summarized as follows: the second instance cannot be final, the death penalty review process exists in name only, and the trial supervision process leads to unlimited appeals, unlimited retrials, and no final trial, taking into account both fairness and efficiency.
(1) Two types of trial procedures: just a formality[8]
Generally, the reason why a country’s first-instance judgment is not a legally effective final judgment or ruling is that Because it is generally believed that judges’ cognitive abilities are limited and rational, the judgments and rulings they make cannot be completely correct. In order to provide the parties with an opportunity for relief, it is more important to absorb the dissatisfaction of the parties through procedures and achieve the purpose of eliminating disputes. Countries generally establish appeal systems in an attempt to build a complete trial system so that potentially erroneous judgments and rulings made by lower courts can be corrected through review by higher courts.
The trial-level system requires the superior court, as the court of appeal, to bear the responsibility of "correction", to treat the judgments and rulings made by the lower courts with caution, and to achieve the dual effects of error correction and relief through the operation of judicial power. However, contrary to expectations, the lack of independence at the trial level makes it difficult for my country's appellate courts to achieve their expected goals.
Judicial independence is the core concept of modern judicial operation. Judicial independence can be divided into three levels according to its content. [9] The first is the independence of judicial power. This is the original meaning of modern judicial independence. The modern concept of judicial independence originates from the separation of powers theory of Locke, Montesquieu, Hamilton and others. After the victory of the bourgeois revolution, it was implemented in emerging countries and promoted around the world. The second meaning of judicial independence refers to the independence of the courts. In actual institutional arrangements, the independence of judicial power is reflected in the independence of judicial organs, that is, courts. The theory that the judicial power is independent of the legislative and executive powers is realized through the status of the courts as being free from the control of the legislative and executive agencies. The third meaning of judicial independence is the independence of judges. The characteristics of the judicial process determine that it is a personalized activity, and justice can only be achieved by relying on the independent judgment of the judge. Therefore, the provisions on judicial independence in some countries are directly reflected in the personal independence of judges.
Court independence is a key link in judicial independence, including the independence between superior and lower courts and the independence between courts at the same level. There is no subordinate relationship. The importance of court independence lies in the fact that it can form a "soundproof space" between the upper and lower courts and produce an "isolation effect" between the upper and lower courts, thereby acting as a two-way restriction between the upper and lower courts and providing parties with Maximum trial-level benefits.
Most of the current final judgments and rulings in our country are made by the Intermediate People's Court, that is, the first instance of the basic court, and the second instance of the Intermediate Court, which is the final instance. However, there is currently a hierarchical administrative relationship between the lower courts and the intermediate courts. This administrative mode of operation cruelly crushes legislators' efforts to achieve judicial justice through the trial-level system.
According to my country's current laws, there is a supervisory relationship between superior and lower courts. However, this relationship has been alienated and the tendency of administrativeization is very serious. This is mainly due to the unclear understanding of the functions and judicial characteristics of the courts at the beginning of the system construction. China's court construction system is not designed according to the general principles of judicial system construction. China's judicial system is designed to be a controlled judicial system that is far away from the modern rule of law country, which makes the courts go on the road of administrativeization or bureaucratization. Following the administrative approach to constructing the judicial system makes the courts an administrative layer between administrative agencies and superior and subordinate courts. The Court of Appeal has become a “superior” court in an administrative sense, exercising one-way supervision and control over lower courts. The positioning of lower courts based on the judicial hierarchy of courts makes them willing to assume a subordinate position. This administrative construction of the judicial system has resulted in the excessive power of intermediate courts, the loss of autonomy of grassroots courts, and the disappearance of trial-level independence, not to mention the disappearance of judicial independence.
In this judicial system, in order to make a living and get promoted, lower-level judges have to put aside their sacred dignity as "judges" and communicate with higher-level judges, hoping that the higher courts can provide "guidance." Based on their desire for power, higher courts are also willing to provide guidance to lower judges, so that the judgments issued by the first-instance court actually become the result of a "collusion" between the upper and lower courts. What's more serious is that the "wrongful case prosecution system" has intensified the "hidden rules" in judicial operations, causing judges in lower courts to have to seek advice from judges who may be far less talented than themselves when they encounter complex cases or when the parties may appeal. or experienced superior. Although extremely reluctant, he was forced to condescend to accommodate.
We cannot criticize or even accuse lower judges or higher judges of what they should or should not do. Because the problem does not lie with the judges at all, [10] but with the controlled judicial operation system, which leads to the expansion of the power of judges in higher courts and the limited and cautious power of judges in lower courts.
Based on the above, we can say that the non-judicial relationship between higher and lower courts has dealt a devastating blow to the effectiveness of the appellate system, shattering the idea of ??litigants trying to obtain justice through trial.
Concomitant with the administrativeization of courts at the trial level is the localization of courts. Currently, district courts have degenerated into district courts. According to the above analysis, judicial independence and judicial independence require the court to be in an independent position in the entire national power structure system. The administrative division of our country's courts makes local courts have a close interest relationship with local governments. Local party and government organs control the personnel and financial systems of courts, and the survival of courts and the promotion of judges depend on local governments. In trial practice, local authorities often use various legitimate or improper methods to directly or indirectly influence the trial activities of courts. Basic courts and intermediate courts are vulnerable to pressure from local governments, especially in cases with greater local influence. Judgments often depend on the tone of local leaders. If a provincial court or the Supreme Court serves as the court of final appeal, it can take advantage of its high level and distance from human relations in a complex local acquaintance society to eliminate interference and promote judicial justice.
(2) Death penalty review procedure: in name only.
In 2002, the dust settled with the sound of gunshots on the "Keeping People at Gunpoint" case in Shaanxi Province.[11] However, it leaves us with a huge space for reflection, forcing us to seriously think about the value orientation and significance of the death penalty review process.
The death penalty review procedure is a special procedure for reviewing and approving judgments and rulings in death penalty cases. [12] If we carefully analyze the definition of the death penalty review procedure, we believe that the main purpose of this procedure is to emphasize “approval”. In another sense, the core of this procedure is the "supervision" of death sentences that have not yet taken effect. The original intention of the death penalty review procedure is to control the number of death sentences, unify the application standards of death penalty, and implement the criminal policy of killing less and with caution. However, due to various reasons, there are many problems in the death penalty review process, which results in the death penalty review process existing in name only and becoming a mere formality.
First, the current death penalty review procedure and the second instance procedure are generally combined into one, making the death penalty review procedure exist in name only. According to existing laws, the Higher People's Court can review some cases of immediate execution of the death penalty and cases where the death penalty is suspended for two years. In practice, these two types of cases are often heard by the Intermediate Court as the court of first instance and the High Court as the court of second instance. The Intermediate People's Court made a judgment. If the parties concerned appeal, the High Court will initiate the second instance procedure and at the same time initiate the death penalty review procedure. The second instance and the death penalty review will be held in the same court, combining the two proceedings into one. In this way, legislators' desire to "review and approve" death penalty cases through the death penalty review process has been ruthlessly crushed by the countermeasures in practice.
Second, according to the provisions of the "Criminal Procedure Law", except for a few death penalty cases (such as cases where the Supreme People's Court imposed the death penalty in the first instance and second instance, or cases where death penalty was suspended), all death penalty cases must go through the death penalty review process. However, in practice, only death penalty cases approved by the Supreme People's Court and cases in which the intermediate people's court sentenced the death penalty but the defendant did not appeal are fortunate enough to receive truly effective review. Because other death penalty cases have been digested by the “two into one” second instance procedure mentioned above. In this way, a large number of death penalty cases have nominally entered the death penalty review process, but have not actually been reviewed.
Third, the execution of the death penalty review procedure is administrative, and its trial methods are written trials and secret trials. This mode of administrative review and approval is difficult to ensure the fairness of death sentences. A distinctive feature of the judiciary is its emphasis on diverse participation and “visible justice.” However, in the current death penalty review process, parties cannot participate and lawyers are excluded. The defendant's right to defense in the death penalty review procedure is greatly restricted, and the public cannot know the specific operation of the procedure.
According to Article 282 of the Judicial Interpretation of the Supreme People's Court, "When the Higher People's Court reviews or approves a death penalty case (the death penalty is suspended for two years), the defendant must be arraigned." However, the judicial interpretation does not It does not stipulate whether the Supreme People's Court should arraign the defendant when reviewing the death penalty, that is, the Supreme People's Court can review the death penalty in a written trial; and it can also be seen from this that a defendant whose death penalty is suspended for two years has more rights than a defendant whose death penalty is approved by the Supreme Court. many rights. [13]
Of course, we must fully affirm that the administrative operation model of the death penalty review procedure has greatly improved the efficiency of litigation and is in line with the purpose of judicial organs to quickly crack down on crime, but it is difficult to guarantee fairness.
(C) Retrial Procedure: Functional Expansion
In response to the question raised by some scholars about whether the two-instance final trial system can ensure a fair judgment, the mainstream view often regards retrial as a powerful refutation weapon. It is believed that our country's trial supervision procedures can completely correct errors in two-level trials. I don't know that this view makes a fatal logical error. The retrial procedure can only be used as a relief procedure for an effective judgment. Compared with the second instance and the third instance, it is an extraordinary relief procedure. [14] In most cases, it should be retained but not used. Overcoming unfair judgments and correcting wrong judgments should be resolved in the trial-level system. The random use of extraordinary relief procedures will turn extraordinary relief procedures into ordinary relief procedures.
According to the provisions of the current Criminal Procedure Law, the subjects of trial supervision procedures are the People's Court and the People's Procuratorate. In the trial supervision work of the people's courts, it undoubtedly requires a great spirit of self-denial to dare to face mistakes and correct them. However, the court's initiative to initiate retrial procedures has been questioned because it violates procedural jurisprudence such as judicial passivity and responsiveness. "The court shall not take any action on matters that have not been appealed by the parties." [15] This calls into question the legitimacy of the judicial impartiality that the judiciary strives to pursue.
In the process of trial supervision, the People’s Procuratorate’s protest is also one of the important driving forces. The defendant, the defense, which corresponds to the role of the People's Procuratorate in prosecuting, has only an obviously unequal right to appeal (not as good as the right to apply for retrial enjoyed by parties in civil litigation). The People's Procuratorate's protest brings about the inevitable start of the retrial process. The complaints of the parties often disappear without any news, which shows the unfairness of justice.
But after all, the right to appeal is still a right of the parties involved. As long as the case is appealed, there is a glimmer of hope for the case to be retried. The design of the retrial system stimulates the parties’ desire to win the case. In order to realize the right to "fight for rights", the complainant is like a fool moving mountains, living and breathing, with no way to complain. [16] This is because the relief mechanism is not smooth and there is a lack of ways to vent dissatisfaction.
In order to cope with or stabilize the public sentiment and provide relief, extra-procedural relief has become popular in desperation. People's congresses, petition departments and the party's political and legal committees at all levels should set up dedicated personnel to handle petition reception. If the petitioner is lucky enough to get the attention of the leadership or the exposure of the media, the case will have the opportunity to be retried. Otherwise, the parties concerned can only continue on the long road of petitioning and appeal. If things go on like this, some parties may really "not litigate" due to loss of confidence in the judicial system. This will be a great tragedy for the socialist judicial system.
The substantial expansion of the retrial function has seriously damaged the finality of justice. To make matters worse, cases that have already been retried cannot be closed. Summary is an important feature of justice and the last line of defense for the country to resolve social conflicts and protect the rights and interests of social subjects. The principle of the rule of law assumes the authority of this activity and designs a judicial process to ensure that it delivers correct judgments in accordance with the law. [17] If the judgment made by the judicial authority is arbitrarily denied, there will be no justice in society. Based on this, countries with civil law systems have established the principle of “ne bis bi bis”, which has been regarded as a basic judicial principle since Roman law. However, due to the frequent initiation of retrials, this principle has suffered a devastating blow in China.
Due to the arbitrariness of retrial, the loss of judicial finality is followed by the loss of judicial authority. An authoritative person in the judicial field pointed out, “Without the power of final adjudication, it is impossible to ensure judicial fairness, let alone establish judicial authority.
"The judgment of the Supreme Court can be appealed at will. How is its authority reflected? Historically, China's judicial authority at this stage has reached its lowest point and reached a very dangerous level." [18]
According to our country’s current system design, as well as our misunderstanding of Marxist epistemology and blind worship of substantive justice, the retrial system seems to exist for self-denial, because according to our appeal and retrial system, any judgment can be Shaken. The spirit is of course commendable, but the judiciary must not apply this spirit. Moreover, the nature of the judicial process determines that even if the case is retried, the quality and judicial fairness may not be guaranteed.
It can be seen from the above that my country's trial supervision procedures sometimes cannot solve the problem of unfair judgments. On the contrary, they may bring about greater injustice and waste of resources.
Third, reflection on the current trial rating system - the double violation of fairness and efficiency
The third part of this article objectively describes the current situation of our country's trial rating system, and intersperses some Comment. Through the above description of the evolution and current situation of my country's trial rating system, we believe that my country's current trial rating system can neither guarantee fairness nor promote efficiency, resulting in a double violation of justice and efficiency. This prompts us to think about why the current review system is full of problems from a macro perspective and the value orientation of system construction.
(1) Mainstream views and legislators construct the second-instance and final-instance systems from a utilitarian perspective.
(2)
In the previous article, the author introduced the origin of the legislative design review system and the current understanding of the mainstream views on this system. We believe that in the war years before liberation, the revolutionary base areas were often turbulent and special judicial policies should be implemented. There is no problem with the second-instance and final-instance grading system. The trial-level system we now adopt is not so much a creation of legislators based on China's national conditions as it is an inheritance of tradition. Habits make us lazy to reflect and innovate, but we always deceive ourselves and others into making reasonable evaluations of it.
“There are too many trials, which wastes resources and consumes people’s resources; but everyone knows that this argument is completely based on utilitarianism and puts the pursuit of efficiency above the pursuit of justice.” In China, judicial reform The initial reason is simple: to improve trial efficiency and reduce the financial burden and case backlog of the courts. "[19] Is this view of justice consistent with what we advocate: "Judicial fairness is the lifeline of judicial work and the eternal theme of the People's Courts"?
Furthermore, the mainstream views have not kept up with the times. The pace of development. In the era of revolutionary wars and class struggle, the two-stage trial system could meet the requirements of the times. However, today with the initial establishment of the market economic system, the two-stage trial system has lost its legitimacy. Although we can still say that our country is vast, if we continue to emphasize "inconvenient transportation", we will ignore the reality. From today's perspective, objective conditions are no longer an obstacle to the parties' pursuit of justice, and the parties' desire for justice is far enough to overcome it. All obstacles of objective conditions. We can say that the Chinese have a tradition of "no litigation" and "no litigation" [20], but we must also note that there are a large number of "Qiu Ju"-style judicial "refugees" who plead for themselves today. , Chinese people's legal awareness of "fighting for rights" far exceeds the traditional concept of no lawsuit. Under the current system, a party who believes that he/she has been treated unfairly will vent his dissatisfaction through various channels. As long as there is a glimmer of hope, he/she will do so. He will complain constantly. He cannot appeal to the Supreme People's Court in the first instance, second instance, or retrial, and the Supreme People's Court cannot take this route, so it is not uncommon for him to go to the National People's Congress, the Chinese People's Political Consultative Conference, or even the Party Central Committee to discuss his views. . Can we say that the increase in trial level will hinder the parties from exercising their rights?
(2) In practice, the death penalty review process turns to efficiency in the value choice between fairness and efficiency.
The death penalty review procedure has always been regarded as a model for my country to adhere to the policy of killing less, killing with caution, and preventing wrongful killings to control the death penalty. It is regarded as a litigation procedure with Chinese characteristics or a unique litigation system in China. It is a criticism of the inheritance of ancient Chinese excellent legal culture. It is gradually formed based on the continuous summary of judicial experience.
However, “The death penalty review procedure is a procedure for internal supervision by the People’s Court. It emphasizes the authority of the People’s Court and is a power-based procedure. Because it does not consider the participation of rights subjects, its value is greatly limited.”[21] The operation of power-based procedures is characterized by a focus on improving efficiency, which can be seen from the Supreme People's Court's power to accept and release death penalty approvals, which is the core of the death penalty review process.
Under the current system, if the Supreme People's Court exercises its power to approve death sentences in full compliance with the provisions of the Criminal Procedure Law and the Criminal Law, it will undoubtedly promote judicial fairness, but it will correspondingly increase litigation costs and reduce litigation efficiency. Therefore, who exercises the right to approve the death penalty, especially the right to approve the immediate execution of the death penalty, can reflect the value orientation of legislators and judicial practice departments in the death penalty review process. In my opinion, it is clear at a glance if we examine the history of the transfer and release of the power to approve the death penalty.
At the beginning of the founding of New China, during the "Three Antis" and "Five Antis" periods, the authority to approve death penalty cases belonged to the provincial people's government (and the commissioner's office designated by the Provincial People's Government's Government Affairs Council). Some death penalty cases It must also be approved by the Government Affairs Bureau of the Central People's Government, all major administrative regions or the People's Revolutionary Military Commission, and all major military regions. During this period, the country was in a period of turbulent movements, and it is understandable that it inherited the death penalty review system from the revolutionary base areas. Of course, since the judicial system is in its infancy, the review of death sentences is the responsibility of administrative agencies and even military agencies, and the procedures are incomplete. However, this is due to the historical era and special historical circumstances.
Article 11 of the 1954 "Organic Law of the People's Courts" stipulates that death penalty cases are subject to approval by the Supreme People's Court and the Higher People's Court. The People's Court applies for review; if the parties concerned do not appeal or apply for review, they shall apply to the Higher People's Court for approval before implementation. The power to approve death penalty cases is delegated to the Supreme People's Court and the Higher People's Court according to different circumstances. Resolution No. 8 of 1956 stated: "All cases requiring the death penalty shall be approved by the Supreme People's Court." In this spirit, the Fourth Session of the First National People's Congress made a resolution that "from now on, all death penalty cases shall be subject to the approval of the Supreme People's Court." Court judgment or approval. "The Supreme People's Court decided on May 29, 1958: "From now on, all 'suspended death' cases that have been judged or reviewed by the Supreme People's Court will not be submitted to our court for review." [22] During this period. , the death penalty review procedure has gone from being absent to being established, and the power to review the death penalty has been gradually centralized from decentralization. The power to approve the immediate execution of the death penalty belongs to the Supreme People's Court, and the power to approve the death penalty with a two-year reprieve belongs to the Higher People's Court, gradually putting the death penalty review procedure on the right track. We believe that this division of the power to review the death penalty is reasonable. Based on the consideration of judicial fairness, legislators transferred the power of approval of immediate execution cases to the Supreme People's Court. Based on the consideration of litigation efficiency, legislators granted the High People's Court the power to approve a two-year reprieve of death penalty. This operating model meets the dual requirements of fairness and efficiency and meets the requirements of the times. Moreover, this legislative model has laid the foundation for the future legislative model of the death penalty review procedure in my country's Criminal Procedure Law, which is of positive significance.
The 1979 Criminal Procedure Law and the People's Court Organization Law promulgated thereafter stipulated: "Death penalty cases shall be judged or approved by the Supreme People's Court." This is a continuation of the legislative model before the Cultural Revolution, and there is nothing wrong with it. On March 16, 1980, based on the deterioration of social security, the Standing Committee of the National People's Congress issued a notice stipulating that in 1980, the Supreme People's Court could authorize the higher people's courts of provinces, autonomous regions, and municipalities directly under the Central Government to investigate existing serious crimes such as murder, rape, robbery, and arson. Cases where the death penalty is imposed are approved. In June 1981, the 19th Session of the Standing Committee of the Fifth National People's Congress passed a decision on the authority to approve death penalty cases, stipulating that except for counterrevolutionaries and corruption offenders, death sentences would still be approved by the Supreme People's Court. From 1981 to 1983 Within the scope, for crimes such as murder, robbery, rape, explosion, arson, poisoning, water shutoff, traffic damage, etc., if the provincial higher people's court finally sentences the death penalty, or the intermediate people's court imposes the death penalty in the first instance, and the defendant does not appeal, there is no need to report to the highest court. Approved by the People's Court.
On September 2, 1983, the Standing Committee of the National People's Congress passed a decision to amend the Organic Law of the People's Courts. It stipulates: "Death penalty cases, except those sentenced by the Supreme People's Court, shall be submitted to the Supreme People's Court for approval. When necessary, the Supreme People's Court shall,