abstract whether death penalty has deterrent effect and how much on earth if it really has this effect, is one of focus points in the debate on the retention or abolition of death penalty. in most cases, abolitionists invariably claim that death penalty has no deterrent effect at all or it can not deter more from crimes than life imprisonment, and on the contrary, retentionists, all without exception, argue that death penalty has incomparable deterrent effect to homicide, especially to murder. from the heckle of “people do not fear death, how can you threat them with death”, which implied the suspect of ideologists in ancient china to the deterrent effect of death penalty, to the latter-day criminal laws restricted the malfeasant pursue to the deterrent effect of death penalty with equivalence, and to the emergence of world swim of abolishing death penalty in modern times, the theory of deterrence of death penalty went across the course from prevalence to decline. in the rational examination on the deterrent effect of death penalty, the focus is whether or not death penalty has marginal deterrent effect in comparison with life imprisonment. whether death penalty has deterrent effect or not and whether death penalty has more marginal effect compared with life imprisonment are two different questions. the forxmer is a qualitative judgement, concerning whether death penalty can deter crime or not, and the later is a quantum judgement, examining the deterrence of death penalty can deter how many people from crimes. empirical studies on the deterrent effect of death penalty resulted in various conclusions because of different approaches, scope of analysis, quality of data and designs of studies. we have no way to know how many people were deterred from crimes because of application of death penalty since we lack convictive evidences. and till now empirical studies on the assumption of the deterrent effect of death penalty do not provide it with unanswerable evidence. it is impossible to ascertain the deterrent effect of death penalty in this circumstance. human sense tells us that a humane and rational society could consider to deprive lives of human beings only in the case that overwhelming evidences prove that deprivation of death penalty could save lives through deterring violence. however, the author of this paper does not draw this conclusion that death penalty has special deterrent effect through the comparative examination on the deterrent effect of death penalty. and neither available evidences can prove nor disprove whether death penalty has much more marginal deterrent effect than life imprisonment. thus we have to say that whether death penalty has special deterrent effect is still a proposition awaiting testification. key words: death penalty deterrent effect marginal deterrent effect efficiency inefficiency 1 死刑威懾論死刑威懾論 一個比較的考察一個比較的考察 死刑是否具有威懾作用以及其究竟具有多大的威懾作用，是 幾百年來的死刑存廢之爭中的焦點問題之一。 這是因為，刑罰的 遏止犯罪之效，乃刑罰存在的重要根據(jù)，甚至可以說是刑罰的生 命所在。順理成章地，作為刑罰之一，死刑首先以其具有遏止犯 罪之效為存在的前提，同時，死刑又是最嚴厲的刑罰，相應地， 其又只有在具有最大的遏止犯罪之效的情況下，才具有特有的存 在價值。正是基于對死刑的威懾作用之于死刑的意義的認識，大 凡主張廢除死刑者，無不以死刑根本不具有威懾效果或者不具有 大于終身監(jiān)禁的威懾效果作為其重要立論根據(jù)；而大凡主張保留 死刑者，則無一不認為死刑對于殺人，特別是謀殺，具有無與倫 比的威懾力，并以此作為力主存置死刑的理由。正是如此，研究 死刑的威懾作用，在一定意義上說，對于死刑的存廢具有牽一發(fā) 而動全身的意義。 然而，在時下中國學界，與死刑的存廢剛被提上爭鳴的議程 相適應，關于死刑的威懾作用的研究尚未受到應有的重視。民眾、 政治家乃至相當一部分學者對死刑的威懾作用的認識往往奠基于 本能的與傳統(tǒng)的盲信之上，缺乏深刻的理性分析，更遑論有令人 信服的實證或經(jīng)驗根據(jù)的支撐。 在這種本能與傳統(tǒng)的盲信指導下， 新中國的立法者與司法者幾十年一貫制地奉行著以重用死刑為特 征的重刑威懾主義，以至在世界上已有超過半數(shù)國家或地區(qū)廢止 死刑的今天，中國無論在立法上還是在司法中，都仍居死刑的世 界之最。 正是基于對威懾效果之于死刑的意義的認識，以及對中國學 界之于死刑的威懾效果的理性認識與經(jīng)驗實證的缺失的憂慮，本 文運用比較的方法，對古今中外的死刑威懾論進行比較研究，以 期引起學界對死刑的威懾效果的研究興趣，為這樣的研究提供一 些理論素材，并力圖展示這方面的研究所可以遵循的路徑。 參見 franklin e. zimring (2) so death penalty is the ultimate deterrence; (3)although the fear of life imprisonment is also a deterrence, the threat of death penalty demonstrates an increased extent of deterrence; (4) that state insures the maximization of deterrence in the form of depriving lives of criminals is justified, since murder is the most severe crime which brings on hell and gone harm to victims. section two theory of death penalty inefficiency those who thought death penalty was of no effect did not deny the deterrent effect of death penalty in a general way, and they did not divaricate much from those who thought death penalty was in effect in this point. but the problem is whether or not death penalty has special deterrent effect, i.e. marginal deterrent effect of death penalty, which may deter more from crimes than other alternative penalty, such as life imprisonment. if this point can not be approved, death penalty can not be used as an allowable instrument to restrain crimes. section three conclusion and complement in the rational examination on the deterrent effect of death penalty, the focus is whether or not death penalty has marginal deterrent effect in comparison with life imprisonment. whether death penalty has deterrent effect and whether death penalty has more marginal effect compared with life imprisonment are two different questions. the former is a qualitative judgement, 62 concerning whether death penalty can deter crime or not, and the later is a quantum judgment, examining the deterrence of death penalty can deter how many people from crimes. in the fields of rational study using logical reasoning, two sides of the debate on whether death penalty has supreme deterrent effect each stick to their own views. those who thought death penalty is in effect amount to much and those who thought death penalty is of no effect are not rare. but neither has persuaded the other side to accept its view or confuted points absolutely of the other. part three empirical examination on the theory of deterrence of death penalty some social scientists tried to examine the deterrent effect of death penalty with various analytical approaches since the early days of 20th century. section one theory of death penalty efficiency those who thought death penalty was in effect argued that it was ill-considered that abolitionists claimed that death penalty had no deterrent effect just because rates of crimes in some countries did not increase as a result. the reason was that the society was sometimes stable and halcyon when a state abolished death penalty and under this circumstance rates of crimes would not increase sharply even death penalty was abolished. but on the contrary, public security was mostly worse and the society was unstable when a state decided to increase some provisions of death penalty, and in this case rates of crimes would not decrease distinctly even if many crimes were convicted with severe punishment or sentenced to death. therefore, we can not deny the deterrent effect of death penalty 63 simply on the base of the two reasons mentioned above. section two theory of death penalty inefficiency it seems that common sense holds out the assumption that death penalty has much more marginal effect than life imprisonment. however, studies of various states did not find any compellent evidences that death penalty could deter others from material crimes. for the above-mentioned reasons, it seems that we can draw a conclusion that there is no evidence which indicates that death penalty has unparalleled deterrent effect. section three conclusion and complement empirical studies on the deterrent effect of death penalty resulted in various conclusions because of different approaches, scope of analysis, quality of data and designs of studies. we have no way to know how many people were deterred from crimes because of application of death penalty since we lack convictive evidences. and till now empirical studies on the assumption of the deterrent effect of death penalty do not provide it with unanswerable evidence. it is impossible to ascertain the deterrent effect of death penalty in this circumstance. part four theory of deterrence of death penalty in chinese discourse in nowadays china, the idea that severe punishment deterring more from crimes still dominates criminal legislation and application of death penalty in practice of measurement of punishment on the one hand and on the other hand scholars begin to suspect the deterrent effect of death penalty and its marginal deterrent effect in comparison with life imprisonment in theory. 64 section one theory of deterrence efficiency as a guide of practice in nowadays china, the idea that severe punishment deterring more from crimes still dominates and guides policy, legislation and judicature about death penalty in practice although academia have begun to oppugn the special deterrent effect of death penalty. section two theory of deterrence skepticism as a result of rational introspection in china the assumption that death penalty deters most is an inevitable result of rational analysis has almost ever been a last word. but when we balance the deterrent effect of death penalty in a utilitarian view, established in the conception of benefit of criminal punishment,