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A Research On The Standardization Sentencing Methods

Posted on:2012-04-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y F BaiFull Text:PDF
GTID:1116330332497382Subject:Criminal Law
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A Research on the Standardization Sentencing MethodsIn this thesis, sentencing methods adopted by sentencing standardization reform are commented. As to standardization sentencing methods, it is believed by the author that this set of methods is based on the correction of sentencing deviation in justice, attempting to realize sentencing justice, and that the idea and the value goal contained inside deserve praise and affirmation, which can promote the realization of sentencing justice. However, when the direction of sentencing methods reform is affirmed, it must be clearly realized that the current standardization sentencing methods are not perfect yet, and need to be improved. As it is questioned by the educational circle, its limitations exist in the aspect of realizing substantial justice of sentencing in the form of mechanization tendency. Therefore, mechanization tendency is analyzed by the author, and the way to perfect standardization sentencing methods is proposed.This thesis is divided into five chapters except the preface.In the preface, significance of choosing the topic, definition of the concept, research thinking and writing methods are introduced.Chapter 1 is Background of Sentencing Methods Reform, which chiefly introduces the background of standardization sentencing methods. Firstly, to confirm the premise of research in this thesis; sentencing justice is taken as the evaluation criterion of sentencing methods to define connotation of sentencing justice, which is characterized as formal justice and substantial justice. Secondly, traditional sentencing methods are commented, the non-stepwise sentencing method is the crucial reason of sentencing deviation, and doesn't conform to the requirements of sentencing justice, which is also considered as the cause of sentencing methods reform. Thirdly, sentencing methods of foreign areas are introduced. Through research on sentencing methods of the USA, Britain, Germany, Japan, and etc., it is discovered that in spite of the different reform modes, all nations agree on pursuing refinement of sentencing, which should be learned by our country at the time of reforming. Then, sentencing methods reform is also being actively explored by the educational circle in our country, and several new theories and doctrines of sentencing methods spring up, among which the three most representative views are computer sentencing method, mathematics sentencing method and sentencing method of foundation punishment. These views are of great value for sentencing reform, but have their own shortcomings as well, or lack rightful basis, or they are bigoted in deciding the same case with the same sentencing and difficult to realize balance between crime and punishment.Chapter 2 is Content of Standardization Sentencing Methods, in which the content of standardization sentencing methods is elaborated, mainly including confirming benchmark punishment, adjustment of circumstance for sentencing on benchmark punishment and the way to confirm declared punishment.According to standardization sentencing methods, the first step of sentencing is the affirmation of benchmark punishment. In the research over the past, benchmark punishment is often confused with sentencing benchmark in traditional theory, however, in fact, the two have different connotations. Besides, the confirmation of benchmark punishment is based on criminal facts, including the basic criminal fact and other criminal facts which influence the crime, and the two correspond to the starting point of sentencing and the added punishment in benchmark punishment, respectively. In addition, the dispute between point and range originating from sentencing benchmark also exists in the problem of benchmark punishment. According to the guidance of sentencing, benchmark punishment should be a point, but not a range.The second step of sentencing is the adjustment of circumstance for sentencing. What merits attention is that the concept of circumstance for sentencing in standardization sentencing methods is different from that in traditional theory, and the connotation is limited to some degree. In terms of specific adjustment methods, the adjustment method of single circumstance for sentencing is relatively simple, and the key is the adjustment of several circumstances for sentencing on benchmark punishment. As to the problem, circumstances for sentencing are divided into two categories by standardization sentencing methods, the general circumstance for sentencing and the special circumstance for sentencing. The general circumstance for sentencing adopts the method of plus in the same direction and minus in the reverse direction; the special circumstance for sentencing adopts the method of partly multiplication and partly plus and minus. No matter it is plus and minus or multiplication, the adjustment of circumstance for sentencing shows as a proportion, i.e., the adjustment mode of proportional punishment. In this chapter, the way to confirm declared punishment is also discussed. Firstly, after the adjustment of circumstance for sentencing, if the result is within the range of statutory penalty, it can be considered as declared punishment except that the prescribed circumstances to mitigate punishment are concerned; if the result is below or over the range of statutory penalty, minimum statutory penalty and maximum statutory penalty, respectively, should be taken as declared punishment. Secondly, in the process of confirming declared punishment, the judging method including multifunction circumstances to lessen and to mitigate punishment changes a lot, and the confirmation method of determining the quality first and then the nature is adopted. Thirdly, quantitative analysis on standardization sentencing methods mainly direct at the set term of imprisonment, so it is necessary to transform among the kinds of punishment, such as life imprisonment, detention, control, accessory punishment alone, and etc.Chapter 3 is Value of Standardization Sentencing Methods, which aims to confirm rationality of standardization sentencing methods. In this thesis, specific value of standardization sentencing methods in the aspect of realizing sentencing justice is demonstrated from the aspects of introduction of quantitative analysis, punishment view of combination doctrine, function of promoting the realization of sentencing justice, and etc.Quantitative analysis is introduced into sentencing by standardization sentencing methods, and becomes a distinctive feature to distinguish them from traditional sentencing methods. Quantitative analysis is the relative weakness of research on criminal jurisprudence in our country, but it is indispensable in the field of sentencing. Neglecting quantitative analysis has been the biggest malady of traditional sentencing methods. In contrast, every step of standardization sentencing methods persists in quantitative analysis and reflects the combined idea of quantitative analysis and qualitative analysis. In terms of realizing sentencing justice, especially formal justice, standardization sentencing methods are of great importance.Retribution and prevention are the everlasting topic in the field of punishment value view, and also the base point of any theory on constructing sentencing methods. Fair and rational sentencing methods should take a combined stand of both of them. Therefore, standardization sentencing methods persist in the combined stand of retribution and prevention, and retribution punishment is taken as the basis of punishment, laying the theoretical foundation for the realization of sentencing justice.As the value goal of standardization sentencing methods, sentencing justice is also the judging criterion of sentencing methods. In this thesis, the promotion of standardization sentencing methods in the aspect of realizing sentencing justice is demonstrated, including the promotion of formal justice and substantial justice.Chapter 4 is Mechanization Tendency of the Current Standardization Sentencing Methods, in which the current standardization sentencing methods are rethought and criticized. It is believed that the realization of substantial justice for part of cases is impeded by problems existing in the design of current standardization sentencing methods in the form of mechanization tendency. In this chapter, demonstration is started mainly in the aspects of the representation and the causes of mechanization tendency.Mechanization tendency means that the realization of substantial justice of sentencing is confronted with impediments for part of cases, which embody in the aspects of exceedingly heavy or light sentencing, sentencing methods in form only, being difficult to realize justice of individual cases, and etc. Substantially, questioning mechanization tendency is the appeal of sentencing individualization for the design of sentencing methods, which requires standardization sentencing methods not only to pursue sentencing individualization, but also to pay close attention to the realization of sentencing individualization.In nature, the misconduct of standardization sentencing methods is reflected by mechanization tendency when the problem of evaluating circumstance for sentencing is dealt with, and after quantification, the unbalanced phenomena of under-punishment and over-punishment appear. This situation appears, because the circumstance for sentencing itself has relativity, and it is difficult to be quantified for part of circumstances for sentencing; besides, it is also influenced by the special operation mechanism of circumstances for sentencing and other factors.Technically, it is difficult to operate the guidance of sentencing in part of cases, which is one of the reasons why mechanization tendency appears. The inconvenience of this operation reflects in two aspects. Firstly, the confusion of applied concept and theoretical concept of standardization sentencing methods is caused. Secondly, when complex cases are dealt with, the superfluous flow becomes the impediment technically. Another important reason why mechanization tendency appears is that discretionary power of the judge is severely limited. Many limitations have been imposed on discretionary power of the judge by the criminal legislation mode itself in our country, and its existential space is further compressed by standardization sentencing methods. In fact, the possibility to overcome the imperfections of legislative structure through discretionary power of the judge is also reduced accordingly by the implement of standardization sentencing methods.Chapter 5 is The Way to Perfect Standardization Sentencing Methods, in which how to overcome mechanization tendency and how to perfect standardization sentencing methods are discussed. In this thesis, the realization of sentencing justice is sought in the aspects of empirical research on sentencing, improvement of sentencing regulations, remedy for discretionary power of the judge, transformation of efficacy, and etc.If we attempt to make standardization sentencing methods perfect, the support of empirical research methods is indispensable. Empirical research methods have unique advantages in the aspects of summarizing the judge's experience and confirming the due sentencing, however, due attention is not paid to them. This is not only influenced by the research tradition of criminal jurisprudence, but also relevant to the special requirements of data empirical research needs. Therefore, led by the court, pilot work should be carried out, and actively cooperated with the educational circle, empirical research on sentencing should be conducted.In the aspect of textual rules, it is put forward by this thesis that firstly, what sentencing rules lack should be supplied, i.e., the contents of reprieve application, fine punishment application, combined punishment for several offenses and etc.; secondly, the adjustment method of the circumstance for sentencing, partly multiplication and partly plus and minus, should be changed, and the method of plus in the same direction and minus in the reverse direction should be adopted.Besides, relief function of discretionary power of the judge should be valued. Not only is discretionary power of the judge normalized by standardization sentencing methods, but also its normal operation depends on discretionary power of the judge. Therefore, imperfections of standardization sentencing methods should be made up by discretionary power of the judge. Specifically, regionalized permission, requirements corresponding to common sense and convention as well as reason, equity of sentencing results, and etc. are elaborated.At present, efficacy of standardization sentencing methods belongs to mandatory application. It is believed in this thesis that whether it is considered from the aspect of the stepwise way of sentencing reform or of the target location of sentencing reform, its efficacy should be changed to advisory efficacy, and the applied exceptional cases should be limited and determined.
Keywords/Search Tags:Sentencing Justice, Standardization Sentencing Methods, Quantitative Analysis, Mechanization Tendency
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