Black and White Collection ∣ "Struggle with Despair - 3,300 Days of Hiro Honmura" - Death Penalty Regulations and Controversy (01)

■ write before

The book "Struggling with Despair - The 3,300 Days of Hiroshi Motomura" was published in 2010. When it was first published, it was a very sensational best-seller, and it also led to a heated discussion on the survival and abolition of the death penalty in Taiwan society at that time.

Because the background is a real criminal case in Japan , and the author has almost described the entire litigation process up to that time, there are quite a few issues involved in the whole book. If you want to discuss each issue, it is almost the structure of a small paper, so I will only pick a few of these topics to write about, and it may be divided into 2 or 3 articles. In addition, after all, this is a real case that has entered judicial trial, so there is no need to cover it up (Note: Compare and review the specific facts with the legal elements to obtain an evaluation result with legal effect).

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■ Story background

The background of the story of this book is the " Hikari City Mother and Daughter Murder Case" that occurred in Hikari City, Yamaguchi Prefecture, Japan on 1999/04/14. Fukuda broke into the apartment where Kimura Hiro and his wife Yayoi (23 years old) and young daughter Yuxia (11 months old) lived in the name of a drain pipe inspection due to a sudden surge of sexual impulses. At that time, Kimura was away from work because of work. Violence against Yayoi and Xixia, resulting in the death of the two, Kimura found Yayoi's body after returning home from get off work and called the police.

1999/04/18 Yamada prefectural police arrested Futian for homicide, and Yamaguchi District Prosecutor's Office prosecuted Futian for homicide and other charges on 1999/06/11 . Both the first instance and the second instance were sentenced to life imprisonment. The Supreme Court of Japan revoked the original judgment in the third instance and sent it back for retrial. The Hiroshima High Court sentenced the death to death. The defense team appealed on the same day, and the Supreme Court of Japan rejected the appeal . After the defense team and Fukuda's petition for retrial was rejected by the Hiroshima High Court, the defense team and Fukuda once again filed a special protest petition for retrial to the Supreme Court of Japan . The case ended after 21 years, and Futian was 39 years old .

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■ The meaning of "punishment"

Before discussing the issue of the existence or abolition of the death penalty in detail, we must first discuss a pre-existing topic: what is "penalty"? What is the purpose of "punishment"?

"Punishment" refers to the punishment received after breaking the criminal law. According to the different nature of deprivation, it can generally be divided into: life penalty, liberty penalty and property penalty . Taking China's "Criminal Law" as an example, the penalty is divided into "principal punishment" and "subordinated punishment", subordinated punishment is the deprivation of public power, and the main punishments are: death penalty, life imprisonment, fixed-term imprisonment, short-term imprisonment and fine, among which the death penalty is life penalty , Life imprisonment, fixed-term imprisonment and criminal detention are free punishments, and fines are property punishments.

What is the purpose of punishment? According to the penalty theory, it can be explored from the following three viewpoints:

1. The theory of retribution : originated from the concept of "a tooth for a tooth and an eye for an eye" in the "Code of Hammurabi" in ancient Babylon.
2. General Prevention Theory (General Public) : Through the punishment of offenders and criminal behaviors, the general public can be intimidated to achieve the effect of crime prevention.
3. Special prevention theory (criminal offenders) : This theory holds that after criminal offenders are punished, they can eliminate or reduce the possibility of offenders committing offenses to others to a certain extent, so as to achieve the effect of preventing reoffending.

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■ my country's death penalty

The death penalty still exists in our country.

Due to the adjustment of criminal policy, China has successively revised the "absolute death penalty" to "relative death penalty" . That is to say, if one commits a crime of absolute death penalty, only the death penalty can be imposed; while in the case of relative death penalty, in addition to the death penalty, life imprisonment, fixed-term imprisonment, etc. can be imposed, depending on the formulation of the article.

There are penal codes in Chinese law, the more commonly used are the "Criminal Law", the "Regulations on the Control of Firearms, Ammunition and Knives" and the "Regulations on the Prevention of Drug Harm." In view of these codes, there are still various crimes that retain the death penalty in this sentence, which are briefly listed as follows:

1. The crime of civil disorder, item 1, item 101, of the Criminal Code.
2. Article 104(1), Article 105(1) and Article 107(1) of the Criminal Law are crimes of foreign aggression.
3. Article 120 of the "Criminal Law" is the crime of abandoning land by civil servants.
4. Article 185-1, item 1, of the Criminal Code is the crime of hijacking an aircraft, and item 2 of the same article is the crime of causing death or serious injury.
5. Article 185-2 Item 3 of the Criminal Code endangering the safety of aviation, aircraft or other facilities causing death.
6. Article 226-1 of the Criminal Code commits the crime of intentional killing of the victim for the crime of forced intercourse and indecent assault.
7. Article 261 of the Criminal Code is the crime of public servants forcing others to plant or traffic poppy seeds.
8. The crime of homicide, article 271, item 1, of the Criminal Code.
9. Article 328, Item 3 of the Criminal Code is the crime of causing death by robbery.
10. Article 332 of the Criminal Code commits the crime of robbery and commits intentional homicide, arson, forced sexual intercourse, kidnapping for ransom, and serious injury.
11. Article 333 of the Criminal Law is the crime of piracy and quasi-piracy.
12. Article 334 of the Criminal Code commits the crime of piracy by intentional homicide, arson, forced sexual intercourse, kidnapping for ransom, and serious injury.
13. Article 347(2) of the Criminal Code is the crime of kidnapping and extorting a person to death.
14. Article 348 of the Criminal Law commits the crime of intentional homicide, forced sexual intercourse, and serious injury by abducting a person for atonement.
15. Article 7(3) of the Regulations on the Control of Firearms, Ammunition and Knives, with intent to manufacture, sell, or transport heavy firearms for the purpose of committing crimes by oneself or others.
16. Article 4, item 1 of the "Regulations on the Prevention and Control of Drug Hazards" is the crime of trafficking and manufacturing first-class drugs.
17. The crime of forcing or deceiving others to use drugs of the first degree, Article 6, Item 1 of the "Regulations on the Prevention and Control of Drug Harm".
18. Article 15 Item 1 of the "Drug Harm Prevention Regulations" is the crime of public servants trafficking and manufacturing first-class drugs, forcing or deceiving others to use first-class drugs by taking advantage of their positions.

As for the Criminal Law of the Land, Navy, and Air Force, the provisions are very strict because of crimes involving active military personnel, and we will not ignore them here for the time being.

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■ Controversy over the retention and abolition of the death penalty

Since Cesare Beccaria, the father of modern criminal law, severely criticized capital punishment and advocated the abolition of the death penalty in his book On Crime and Punishment (1764), the controversy over whether the death penalty should be abolished has been debated for more than 200 years. Those who support the retention of the death penalty, their arguments are nothing more than serious crimes, unbalanced proportions without the death penalty, realization of justice, and maintenance of social security; while those who support the abolition of the death penalty can be roughly summarized as violations of the basic right to life, and the death penalty is irreversible. Sexual punishment cannot prevent crime from happening.

The discussion on the existence and abolition of the death penalty is no longer a simple criminal law issue, but also mixed with various political and economic factors . I don't want to discuss whether the dialectical death penalty should be kept or abolished here. I just want to talk about some of my own thoughts and questions.

In my country's criminal judgments imposing the death penalty, a sentence is usually written: "Malignant is serious, there is no possibility of indoctrination, and it is necessary to permanently isolate the defendant from society." Anyone who pays attention to social news should know that crimes that are so vicious that they must be permanently separated from society have always existed and have never been eliminated . If the death penalty is abolished, how will we make prisoners get the corresponding price? To release a criminal who has committed such a bad deed to the society after a certain number of years of punishment is like dropping a time bomb on the normal life of the people, just like Zhao Dou-soon, the sexual assault criminal in the "Sowon case" in South Korea, was released from prison. of turmoil and turmoil.

In fact, do those who support the death penalty believe that the death penalty is irreplaceable? I don’t think so. If there is a plan that can replace the death penalty, such as life imprisonment without parole, it will also achieve the purpose of “permanent isolation from society” . However, my country does not yet have a similar penalty system. Under the death penalty, it is life imprisonment. According to Article 77, Paragraph 1 of the Criminal Law, if the execution of the prison sentence has real evidence of remorse, the life imprisonment is more than 25 years, and the prison Reported to the Ministry of Justice and was released on parole, but did not achieve the effect of permanent isolation from society.

If the life imprisonment system is adopted, there are still economic considerations. After all, if the criminal is to be imprisoned for a lifetime, it is bound to incur huge costs , but this is based on the criminal's own viciousness. Another backlash might require prisoners to cover some of the costs themselves, or get paid for work to offset it . In addition to these, how to make up for the loss of the victim is also a topic that requires serious consideration .

As for the issue of wrongful convictions and misjudgments, I think it should be to strengthen the police's ability to collect evidence on the front line and the quality of the court's trial.

Finally, share a passage from Kimura Hiro, the survivor of the "Mother and Daughter Murder Case in Hikaru City":

" The meaning of the death penalty is to let a criminal who committed murder honestly face the mistakes he has committed, reflect from his heart, and resolve to use the rest of his life to atone for his sins and make a meaningful contribution to society. "

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■ write after

It took a few days to finally complete the first [Black and White Collection]. It was really not easy to write about the death penalty from the very beginning, but after all, I had to reread this book before I started to read and write again, so I had to stick to it. on the scalp. I don’t want to use provocative words to attract attention or traffic, so I only briefly touched on the background of the case, without describing the whole process of the case in detail, and there are no photos of relevant people. There is a lot of information on this case on the Internet. Interested friends can search by themselves.

When I first learned law, I came across a sentence: "Do n't only see the pity of the living, but not the sadness of the dead. " The source is no longer available (it seems to be "Yuewei Caotang Notes"?). This sentence has deeply influenced me to this day. , right or wrong? Leave it to everyone to judge for themselves.

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■ References

• Takashi Kadida/Translated by Xu Jinyu (2010/04 first edition), "Struggling with Despair - 3300 Days of Hiro Kimura", Xinyu Publishing House.
• "The Murder of Mother and Daughter in the City of Light" entry, Wikipedia.
• Economic Daily (2020/12/09), "Supreme Court rejects death row retrial petition on the day of the murder of mother and daughter in Guangshi". Retrieved from https://money.udn.com/money/story/5599/5079760 .
• Huang Huiting (2010), Discuss the legitimacy of aggravated punishment for repeat offenders from the purpose of punishment, Journal of Correction, Vol. 9, No. 1.
• Chen Guancheng (2014), A Study on the Survival and Abolition of Death Penalty – Using Suspended Death Sentence as an Alternative, Master's Thesis, Department of Law, Chinese Culture University.
• Yang Yating (2014), A study on the life course of death row prisoners and their cognition of death penalty, master's thesis of the Institute of Crime Prevention, National Chung Cheng University.
• Coalition for the Abolition of the Death Penalty website, https://www.taedp.org.tw/ .
• Liao Hengyi, Huang Yuzhen, Alternatives to the Death Penalty, Legal Vernacular Movement. Retrieved from https://plainlaw.me/2018/06/23/death-3/ .

Blog version: https://gnphantom.blogspot.com/2021/08/330001.html