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Research On Sentencing Circumstances

Posted on:2012-04-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:J G ZhouFull Text:PDF
GTID:1116330335463462Subject:Economic Law
Abstract/Summary:PDF Full Text Request
Sentencing circumstances are the reflections for the whole problem of criminal punishment and the concrete manifestations of whether criminal punishment is just, which is the relatively missing and difficult part of research for the issue of criminal punishment. This thesis will discuss these issues in theory and practice such as sentencing circumstances'history, features, definition, identification and its standards. On the basis of the existing research, this thesis will form an overall intellectual system of sentencing circumstances.Chapter one reviews the history of the sentencing circumstances' phenomenon. The phenomenon of sentencing circumstances had not existed all along. In the phase of retributive punishment, conviction and sentencing was completed simultaneously, and the independent phase of sentencing did not exist. But wten people gradually realized that criminal punishment could not only punish crime,but also has the effect of preventing and restraining crime. Thus, conviction and sentencing began to disassociate, and sentencing circumstances also began to come on the historical stage of criminal punishment. Discretion of deterrence punishment is mainly done according to criminal's subjective malignant and the needs of deterrence of criminal punishment towards the society. Sentencing circumstances mainly include the sentencing circumstances which represent crime's malignant and the sentencing circumstances which represent the effect of prevention. In the period of equal punishment, sentencing circumstances mainly include two parts, the sentencing circumstances of deterrence which are suitable for the thought of equal punishment and are reserved by equal punishment, and the sentencing circumstances of equivalence which represent the thought of equal punishment, which have the characteristics of plurality, objectivity and normalization. After the period of the late nineteenth century and the early twentieth century, the emphasis of criminal punishment had turned to segregation, education, penitentiary and transformation for criminals, and the correction punishment system that aims at individual criminal prevention had been born. Correction punishment made the offender's personal dangerousness as the basic norm of sentencing. Sentencing circumstances of correction punishment mainly represent the characteristics of return of subjective circumstances, concern for the circumstances that unhappen, and dilution of crimes that had occurred. And then, the thought of compromise punishment reconsider the thought of retributive punishment, deterrence punishment, equal punishment and correction punishment. It compromised the four thoughts of criminal punishments.Chapter Two will analyze the characteristics of sentencing circumstances. Firstly, sentencing circumstances have the utilitarian characteristic. Secondly, sentencing circumstances have the characteristic that is suitable for the foundation of criminal punishment. Thirdly, sentencing circumstances are the foundation of individualization of criminal punishment. Fourthly, sentencing circumstances have the relative legality. Fifthly, sentencing circumstances are the circumstances outside the circumstances of conviction.Chapter Three will analyze the logic of sentencing circumstances. Firstly, this thesis put forward the opinion that sentencing circumstances are thing-in-itself. The existence of sentencing circumstances is not due to other things or other things'existence. Secondly, this thesis also put forward the opinion of change of sentencing circumstances. The change of sentencing circumstances is mainly the change of the content of. It is a process of continuous promotion of sentencing circumstances under the instruction of the new theory of criminal punishment. Thirdly, this thesis will analyze the phase of sentencing circumstances. Finally, this thesis will give the scientific definition of sentencing circumstances that, sentencing circumstances are, in order to meet the needs of individualization of criminal punishment, the non-conviction circumstances that are selected according to the foundation of criminal punishment, relatively stipulated by the law, and decide the result of criminal punishment in one criminal case.Chapter Four will study the methods by which how to identify sentencing circumstances. Firstly, the thesis will analyze the reasons why sentencing circumstances need identification. Secondly, according to the demand of the constructive elements of sentencing circumstances, using the method of legal logic, from the perspective of maneuverability, the thesis will put forward the method and phase via which one specific sentencing circumstance could be identified. The first phase is to judge whether the sentencing circumstance is up to the demand of the foundation of criminal punishment. The second phase is to judge whether the sentencing circumstance has been stipulated by the law. The third phase is to judge whether the sentencing circumstances of different cases under the same type of crime have differentiation. The fourth phase is to judge whether the sentencing circumstances are the conviction circumstances. Finally, using the method of constructive identification, the thesis detailedly identify and manifest the sentencing circumstances which cause greater popular indignation, the sentencing circumstances of social situation, and the sentencing circumstances of criminal policyChapter Five will analyze and reconstruct the standard of punishment of sentencing circumstances. After the identification of sentencing circumstances, the key of how sentencing circumstances play the role in judicial practice is the problem of standard punishment. The Supreme Court of China had started the pilot work of sentencing normalization from June 1st,2009, and issued the Guidance for Sentencing that make standard punishment as its core. In terms of the content of standard punishment and the foundation of punishment of sentencing circumstances, standard punishment which makes the basic criminal facts as the basis has its irrationality both in content and structure. The thesis consider that the Guidance for Sentencing should been amended in reason.From the new perspectives and from the historical and practical basis, using the logic method, the above five parts consider both of theory studies and practice predicament of sentencing circumstances, and form the research outcome which has thicker theory of criminal punishment and the background of detailed judicial practice.
Keywords/Search Tags:Sentencing circumstances, Foundation of criminal punishment, Identification of sentencing circumstances, standard of punishment of sentencing circumstances
PDF Full Text Request
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