Research On Application Of Circumstance For Sentencing

So far, about the circumstance for sentencing, educational circles concentrate on its ontology issues, while the application of it is seldom discussed. The author believes that there are two reasons can be account for this. First is overlooking sentencing issues. In recent twenty years, Chinese criminal academia focus much on criminal theory as the thesis about the constitutive elements of a crime can be found everywhere. But when it comes to criminal theory, the research about the penalty is in serious shortage, let alone sentencing and circumstance for sentencing of the penalty. Second is the particularity of sentencing itself. Sentencing is the criminal judicial activity that the people's court determine whether punish the criminal or not and what the punishment is. The subject is the people's court. More specifically, it refers to the criminal judicial activity made by the penal judge. Judge's power of discretion is also involved. For practice, as there is large distance among the same criminal theory, few scholars study on this. Even though some scholars have interests in researching on sentencing issues, the limitation of the practical judicial experience and the samples to be studied make them stop researching on sentencing issues.The study on sentencing issues likes this, let alone the application of circumstance for sentencing. Few articles have discussed the application of circumstance for sentencing before. The application of circumstance for sentencing is mentioned when discuss the noumenon of circumstance for sentencing. It occupies little space and not discussed in depth. The above articles concerning about the application of circumstance for sentencing only mention co-opetition of circumstance for sentencing. Just as application of circumstance for sentencing is another way of saying co-opetition of circumstance for sentencing. But in author's opinion, for the logical way when sentencing, after confirming benchmark punishment of a specific crime, the judge should make sure the circumstance for sentencing firstly. That is to say, confirming that the social harmfulness and the personal dangerousness are serious and then affecting the fact of sentencing is the circumstance for sentencing of the case. Then make sure the function of specific circumstance for sentencing. Specifically speaking, as most of the legal circumstance in our criminal law is multi-function circumstance, the effect of it on the sentencing is uncertain. But in a specific case, one circumstance for sentencing should have only one effect. So after making sure qualitative circumstance is multi-function circumstance, we need to make sure the specific function of this circumstance for sentencing. At last, adjust benchmark punishment according to the co-opetition result of circumstance for sentencing and special circumstance for sentencing and achieve the final declared punishment. So, the main content of this article is to show the points to be paid attention to and some rules to obey when discuss application of circumstance for sentencing. The thesis consists of six parts:First part is the noumenon of circumstance for sentencing. The main issue of this part is the concept, the classification and the scope of circumstance for sentencing. For the concept of circumstance for sentencing, the author think for application of the case, the social harmfulness and the personal dangerousness is different in degree. The circumstance for sentencing that showing different social harmfulness and personal dangerousness results in different strict and lenient level. So we should not ignore the different level of circumstance for sentencing when discusses the concept of circumstance for sentencing. In addition, I discuss the scope of the strict and lenient circumstance in the way of comparing research on Chinese and foreign criminal law. Finding the differences between common circumstance for sentencing in foreign and our country's criminal law plays a suggestive role in expanding the scope of circumstance for sentencing.The second part and third part discusse the factor that affect the application of circumstance for sentencing. Firstly, application of circumstance for sentencing that determined by the penal judge independently is influenced by the discretion of the judge. The effects of the discretion of the judge on application of circumstance for sentencing are shown in the following two aspects. One is the right to choose whether use the application right or not in the able circumstance and discretionary circumstances of the statutory circumstances. The other is the right to choose the function of multi-function circumstance. The author think regulation should be made to make sure the discretion of the judge in procedure and entity. Secondly, another factor that affects circumstance for sentencing is criminal policy. In author's opinion, the effects of criminal policy on application of circumstance for sentencing are shown in two aspects: One is the relaxed or the tightened attitude that applied for circumstance for sentencing under the condition of special time and criminal policy. The other is that according to the regulations of the criminal policy, the judge takes the facts into the circumstance for sentencing. Take the facts that not belong to circumstance for sentencing before into account now, such as that according to the criminal policy of strict with leniency, the court always think the case that disgorge ill-gotten gains, restitute, gain the forgiveness of the families and compensate victims as circumstance for sentencing.The fourth part mainly studies on the principle of sentencing and application of circumstance for sentencing. The author thinks the principle of sentencing is the super ordinate notion of the principle of application of circumstance for sentencing. Only clearing sentencing principle, the principle of application of circumstance for sentencing can be clearly defined. Through comparing and discussing, I think the principle of sentencing should be the principle of duty and individualization. The principle of application of circumstance for sentencing include: The principle of all things considered, the principle of equal application, the principle of equalization and the principle of prohibiting repeatable evaluation.The fifth part mainly studies the issues of benchmark punishment, the conformation of circumstance for sentencing in particular case and the conformation of the function of circumstance for sentencing in particular case. The issue of benchmark punishment is the premise of application of circumstance for sentencing. As to benchmark punishment, there are many different opinions and arguments between Chinese academia and practice. The author think the counter part of benchmark punishment is eliminating the social harmfulness and the personal dangerousness that reflected by the facts that exclude circumstance for sentencing (such as immature criminal, discontinuing form of the crime and so on).The degree of benchmark punishment reflects the degree of badness and the criminal character of the criminal behavior. The author agrees with the opinion in the Guidelines for Sentencing. The author thinks the benchmark punishment should be certain. Benchmark punishment should be made sure through the choice of the beginning of the sentencing—the adjustment of sentencing beginning—the logical way of benchmark punishment. At the same time, benchmark punishment should be the reference to the confirmation of circumstance for sentencing and circumstance for sentencing. Only referring to benchmark punishment (in other words, criminal substance that reflected by the benchmark punishment), whether scenario is the circumstance for sentencing or not and the role it plays in this case can be judged accurately. The confirmation of circumstance for sentencing and plot functions in specific case follows the following principles: 1. the relationship between infringement of law benefits and facts; 2. the relationship between criminal character which reflected by benchmark punishment and the facts; 3. the connection among the concrete facts in the case.The last part mainly discusses the result of application of circumstance for sentencing. That is the conclusion of declared punishment. Circumstance for sentencing needs to adjust benchmark punishment. After that, declared punishment is drawn. This involves two issues: One is the co-opetition of multi-circumstance in a specific case. The other is adjusting method of benchmark punishment for circumstance for sentencing. As to the former, Guidelines for Sentencing adopt the method of quantization in proportion. So that is not a problem. For the latter, the author think there is deficient theory, complicated steps and confused way of the method partly continued multiply, partly add and subtract in the Guidelines for Sentencing. And the so-called method partly continued multiply, partly add and subtract is actually to prevent that the calculated results are negative numbers. The main reason for the result of negative numbers is the method that alleviates the application of the circumstance. This article puts forward the usage and the matters needing attention in alleviating the application of the circumstance in order to make the calculated results more reasonable and prevent the result of negative numbers.