刑法49条第2款的规定标志着在刑事立法上对老年人刑罚轻缓化的认可,这点值得肯定,但已满75周岁不适用死刑的立法却走向两个极端:一是年龄设置偏高,导致司法实践中恩惠到的老年人少之又少;二是老年人免于适用死刑可能导致司法实践僵硬,不利于应对当前我国社会各种复杂情况。再者,“以特别残忍的手段致人死亡的除外”界定不明不易认定,也与通常的刑法定罪逻辑不符。 The provisions of article 49, paragraph 2, of the Criminal Law mark the recognition of penalties for the elderly in criminal legislation. This point is worthy of recognition. However, the legislation that is not applicable to the death penalty at the age of 75 goes to two extremes: first, High, leading to very few favored elders in judicial practice. Second, exempting the elderly from the application of the death penalty may result in stiff judicial practice and will not be conducive to coping with the current complex situation in our society. Furthermore, the definition of “excluding death by a particularly cruel means” is not easily ascertainable, nor is it in conformity with the usual logic of criminal conviction.