Research On The Reform Of Sentencing Procedure In China

Sentencing is an important part of criminal judicial system that affects the criminal justice. Since the Supreme Court in the "twenty-five Reform Program" put forward that "perfect the relatively independent sentencing procedure" at 2005, the sentencing procedural reform has promoted sentencing substantive justice actively. But the reform is still inadequate, and it is necessary to study theoretical issues of the sentencing procedure further. The article uses the value-analysis method, comparison method and empirical method to analyze the problems and the reasons of the criminal sentencing procedure in china from the criminal integrating perspective. In this paper, the main line is procedural transformation of the sentencing procedure, and the value objective of sentencing justice and efficiency is the guidance on sentencing procedure construction. The thesis studies the operation of the right to appeal and discretion in response to the right to appeal and the protection which is from sentencing procedure and evidence to the right to appeal and discretion. It is to sort out a more systematic, complete, and scientific reformatory idea. The main body consists of six chapters in addition to introductory text.The first chapter is on "the basic problems of sentencing procedural reform." The construction of sentencing procedure in china should be consistent of the substantive justice, basic procedural justice and effectiveness. The value target can promote our reflection on the existing specification and operation of the sentencing procedure, and provide guidance and direction to reform and improve sentencing procedure. Sentencing procedural reform should be carried out under the basic premise of the theory. First, looking at the relationship between the conviction and sentencing, conviction is the basis for sentencing, sentencing is the protection of conviction; Secondly, in the standardization of sentencing procedure, the path of procedural law should be the key to the reform, and attach equal importance to the reform of substantive law and procedural law; Finally, in the sentencing procedure the right to appeal should constraint the penalty discretion.The second chapter is on "the sentencing recommendation." It is significant progress for promoting sentencing justice and restricting the penalty discretion that the prosecution puts forward sentencing recommendation. The sentencing recommendation is an integral part of prosecutorial power, and it is a public authority rather than private rights. It limits the scope and extent that the sentencing recommendation impact on the discretion. The sentencing recommendation in china has gone through more than ten years from the experiment to the full implementation of the reform, and there are ideological, institutional and practical reasons that make the sentencing recommendation carry out difficultly. So we should correctly understand the roles and limitations of the sentencing recommendation, and expand the application of sentencing recommendations, and make the sentencing recommendation scientific, and improve related measures.The third chapter is on "the sentencing defense." Sentencing procedural reform gave birth to this new defensive pattern. The article first distinguishes among sentencing defense, the non-guilty defense and the misdemeanor defense. The sentencing defense is that the defense refute allegations heavier, and put out facts and reasons that is favorable to the defendants, and argument that the defendants should be on the sentence lighter to protect the legitimate rights of the defendants. Sentencing defense can promote the exercise of the right to appeal by the prosecution side and make sentencing procedure more reasonable, and strengthen the judicial authority and convincing. It identifies the significance of sentencing defense. Now there are some factors that hinder the defense sentencing carry out in china. Taking into account the defects of the criminal defense system and the reality of reform of the sentencing procedure in china, we should comprehend the importance of sentencing defense, and create conditions through improving the legal aid system and the assignment of defense to protect the right to defense counsel.The fourth chapter is on "the sentencing process model." It is the key to construct the sentencing procedure that choose sentencing procedural model in China. Common law countries use the separation model of conviction and sentencing procedure in common, while the civil law countries use the integration model of conviction and sentencing procedure, both models have pros and cons. When we choose the model of the sentencing procedure in China, we should consider not only the valuable target of the sentencing procedure but also our existing legal mechanisms, and not only the protection to the sentencing justice but also the effectiveness of the procedure. We should establish the separation model in the cases of death penalty and that the defendants plead non-guilty, and establish relatively independent model in the other cases. In addition, the article discusses the legitimacy and significance that the victims participates the sentencing process. The victims should participate in the sentencing procedure and express views on sentencing as a party to criminal procedure. It is an important goal that achieves sentencing procedure open and transparent. The sentencing verdict should change the status quo of reasoning weak, to strengthen the verdict reasoning in the sentencing procedure.The fifth chapter is on "the sentencing evidence and proof." Sentencing evidence is the basis on the sentencing judge. The sentencing evidences are extensive. They are both the evidences that relate crime fact and that have nothing to do with the crime fact. The sentencing evidence has special nature. Collecting evidence should focus on comprehensive and legitimacy, and presenting evidence should focus on relevant, but cross-examination should follow the limited principle. The proof in sentencing procedure should also be differentiated with the conviction. The object of proof should be the sentencing claims of the prosecutor, the victim and the defense. The principle of allocation of proof is "who advocates, who bears the burden of proof". The prosecution and the defense should reach the preponderance of evidence standard when they prove their views.The sixth chapter is on "the sentencing procedure in capital cases." It is an important way to restraint death penalty through the independent sentencing procedure in capital cases. We should build independence sentencing procedure in capital cases in china. In judicial practice, we should open capital convicted procedure combined with the relevant provisions of China's death penalty review and judicial practice. The specific sentencing procedure in capital cases should reflect the concept of procedural justice and make sentencing individualized and apply death penalty limitedly. In order to protect the accused in capital cases, we should learn from effective defense system in the United States, and puts forward specific ideas about improving our defense system in capital cases ultimately.