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我国死刑的立法技术实质上扩张死刑,形式上却隐藏死刑总则以貌似限制死刑的法文,放宽死刑适用条件;分则以罪名变更、罪状重组的方式,使死罪数量明减实增;死刑个罪或扩大罪状外延、缩小其内涵,以扩大覆盖面,或以援引、分割、转化、竞合的方式隐藏死刑。扩张死刑源于对刑罚效益规律的误读,降低了刑罚配置的整体效益;隐藏死刑源于轻刑化的外围压力,降低了死刑自身的效益,最终陷入了死刑“越限制越泛滥”的怪圈。
In our country, the legislative technique of death penalty has virtually expanded the death penalty, but in form it hides the general rule of death penalty with the seemingly restricting the death penalty in French and relaxes the applicable conditions of the death penalty. In the meanwhile, the number of death penalty is reduced or increased in real terms by the change of guilt, Or expand the guilt, narrow its connotation, to expand the coverage, or to cite, split, transform, competing to hide the death penalty. The expansion of the death penalty stems from the misunderstanding of the law of the efficiency of punishment and reduces the overall effectiveness of penalty allocation. The hidden death penalty stems from the external pressure of light punishment and reduces the effectiveness of the death penalty itself, eventually falling into the death penalty. The strange circle.