On The Discrepancy Of Criminal Penalty

Fairness, justice and equality have always been the goal of the human pursuit. As a law of legal protection, the principle of balance between crime and punishment established in criminal law is an important way to achieve this goal. But in the judicial practice, the phenomenon: different punishments to the same crime, has often led the public to judgment puzzles. In the author's view, the main reason lies in the inherent differences in penalties. This article is a preliminary study on the issue.In addition to Introduction and Conclusion, this article is divided into four chapters, and the full text is approximately 168.000 words.In the first chapter. I discussed the concept, characteristics and origins of discrepancy of criminal penalty, and compares it with the judicial practice in common concept. The article maintains that the discrepancy of criminal penalty could be divided into vertical discrepancy and horizontal discrepancy differences, the former is showed by the discrepancy between statutory sentence and the view of equity, declaration penalty and penalties benchmark, enforcement punishment and declaration penalty. The latter is manifested in that at different times and different regions, even in the same region, different judges possibly can condemn the different penalty to the similar case even identical case, which is the external manifestation of the discrepancy of criminal penalty. The discrepancy of criminal penalty is an objective conclusion based on the study on the penalty in the view of dynamic relationship between crime and punishment, the prerequisite is that the accusation is correct. The article begins with introducing two philosophical fair views, then it gives a presentation about fair view of penalty on different historical stages, and it holds that the uncertainty of fair view is the objective grounds and theoretical source of the discrepancy of criminal penalty. The article also, through the comparison, elaborates the relationship between the discrepancy; of criminal penalty and the balance of sentencing, the unbalance of sentencing, the light sentencing and the heavy sentencing, believes that the limitation to the discrepancy of criminal penalty is the prerequisite to guarantee the balance of sentencing discretion which is the goal to make study on the discrepancy of criminal penalty, the relationship between the discrepancy of criminal penalty and the unbalance of sentencing, the light sentencing and the heavy sentencing, is just like the relationship between the error and the wrong in the physics, the error (the discrepancy of criminal penalty) are inevitable, if it surpasses the certain limit, if will turn to fault (discretion of punishment unbalanced, discretion of punishment lopsided). Finally, the article briefly discusses the significance to make research on the discrepancy of criminal penalty. The Second chapter discusses the relationship between the discrepancy of criminal penalty and principle of balance between crime and punishment. The article elaborates the meaning of the principle of balance between crime and punishment in the view of relationship between the principle of balance between crime and ounishment and the individualization of criminal penalty, holds that the principle of balance between crime and punishment demands a match between the degree of criminal penalty the jeopardize of the crime to society, it also manifests the requirement of retribution and utility,. The article believes that the principle of balance between crime and punishment could function as protecting human rights and showing justice which is the principle needed to be insisted during the legislation and justice. The article then discuss the matters that should be noted in order to realize the balance between the crime and punishment, combined with specific cases, based the confirmation that the goal of the penalty is retribution and special prevention, taking criterion as ascertained offense and retribution penalty, unaccomplished crime and penalty for special prevention, holds that equilibrium is not like the one of mathematics formula which is not possible and not necessary to realize either. Equilibrium is the conclusion after comparison which includes the comparison between ascertained offense and unaccomplished crime, the comparison between retribution penalty and special prevention, the comparison of different judges toward the same case, the comparison of different courts to the same case, the comparison between statutory sentence and the fair view, declaration penalty and penalties benchmark, enforcement punishment and declaration penalty. Finally, the article discusses the relationship between the discrepancy of criminal penalty and balance between crime and punishment with the criterion of legislation, justice and theoretical study.The third chapter discusses the reason behind the discrepancy of criminal penalty. The article mainly makes analysis on tliree factors of various reasons. First section has analyzed human's factor, the author thinks that judge's special details, including the sex, the age, the native place, the economical condition, individual custom, the growth environment, the prejudice, and the disposition and so on may have great influence to certain extent when deciding cases. The performance of litigant participants including the defendant, the victim, attorney, witness, the expert, interpreter, audits personnel can also cause the discrepancy of criminal penalty. The Second section consider that the legislative reason of the discrepancy of criminal penalty lies in both the ambiguous meaning of heavier punishment, light punishment and mitigation of punishment below the minimum statutory prescript, and improper statutory sentence allocation and the ambiguous sentencing discretion grounds. The third section holds that the judiciary reason of the discrepancy of criminal penalty lies in the different understanding to the goal of penalty, ambiguous sentencing method and oversized discretion of judges.The fourth chapter discusses the methods to limit the discrepancy of criminal penalty. This part based on the third chapter, analysis the legislative and judiciary way to limit the discrepancy of criminal penalty. The first section analysis the legislative way. including clarifying the definition of the heavy punishment, light punishment, abating punishment, rational allocation of statutory punishment and indicating the grounds of sentencing discretion. The article holds that heavy punishment and light punishment are used when certain crimes doesn't fall into the circumstances of heavier punishment and light punishment, abating punishment means the mitigation of punisliment below the minimum statutory prescript, and also believes that abating punishment means the mitigation of prison term to punishment which could be divided, abating of kind of punishment to punishment which couldn't be divided. The article defines the methods to allocate the statutory punisliment based on the analysis on statutory punishment: first, to establishes the statutory punishment in the crimes of same kind; next, compares the weight of this crimes with others, to determine the statutory punishment of other crimes, at the same time the similar crimes of other crimes of the same kind is taken into consideration, and also carry on the analysis on this method with crimes against property as the example. The article also holds that making the specific provisions of criminal law more specific, making the crimes more specific and optimizing the statutory sentence are the methods to be taken to allocate the statutory sentence reasonably. The article based on the principle of discretionary action of sentencing, carry analysis on the 61st stipulation of the Criminal Code of China. The article analyzes emphatically the circumstances for adjudgment and sentence, and discusses the principle of prohibited repetition appraise used in the application of sentencing. The article believes that at the time of sentencing, we may not take rigid attitude to whether to give a second appraise to the circumstances for adjudgment, but make specific analysis to specific circumstances, to circumstances of adjudgment which could be divided, it is possible to give another appraise which maybe not be in the same level and the significance may also be different, but this appraise is necessary and inevitable, not against the principle of prohibited repetition appraise. The article also believes that, the popular indignation shouldn't be taken into consideration when making sentence. The second section analyze the judicial way. elaborating emphatically from the angle how to perfect the sentencing method. The article divides the sentencing into our steps: (1) to determine concrete legal punishment scope according to circumstances for adjudgment: (2) to define sentence benchmark in the certain scope of statutory sentence: (3) to review the influence of circumstances for sentence to sentence benchmark: (4) to revises sentence benchmark in the light of circumstances for sentence. The article mainly carries on research on the last three steps. The article holds that sentence benchmark should be the penalty needed to be applied in crimes of the normal configuration of which the fixing criterion is rate of exposed criminal cases. The article, combined the various model of statutory sentence of china, analysis the availability of confirming the sentence benchmark based on midline theory, take the logical reasoning as the method. Based on the legal circumstances and circumstances for discretion, the article puts forward the criterion for sentencing, and carries on research with the concurrence of the sentencing discretion and the conflict of the reversion circumstances of sentencing discretion, maintain to take the doctrine of accumulation to the former, combined with principle of restrictive aggravation and absorption principle, and take the elimination methods to the later. The sentencing method confirmed in the article may be defined as follows: fix the sentencing benchmark in the light of principle of median line theory. Endow the function to legally-prescribed circumstances of sentencing and discretionary circumstances of sentencing: apply the function of sentencing circumstances to sentencing benchmark to fix the declaration penalty finally according to the doctrine of accumulation (absorption principle and principle of restrictive aggravation) and the elimination methods. Epilogue consists of brief summary to the article. The article holds that the discrepancy of criminal penalty is objective and couldn't be removed; the only way is to take various measures to confine it.