Research On The Phenomenon Of The Uncertainty Of The Criminal Judgment

This article studied the application of criminal law, the concern is how the legalnorms down the temple of the text, to facts of the case and case referee specification,and ultimately the formation of a judge of the case results. As a premise, this articledefines the meaning of the criminal judgment for the people's court in accordancewith statutory powers and legal procedures, the case of substantive issues, proceduralissues, behavior and process trial, as well as in the case proceedings or trial, the casemade judgmental conclusions. Criminal cases, the referee formation process ingeneral including the discovery of the facts of the case and find legal norms, theformation of these stages of the referee conclusions. In this process, there are anumber of factors, one case occurred after the application of which a legal norm, willbe given to what charges and sentenced to what the penalty is not always uniquelydetermined, this is our the uncertainty of the said criminal judgment. Is the uncertaintyof the phenomenon of the criminal judgment, first deconstruction of historicalanalysis and practical examination of the methods of this phenomenon, and then fromthe multi-dimensional analysis of the causes of this phenomenon of Justice, andfinally look for the abatement of criminal referee uncertain of the path. The main bodyconsists of four chapters in addition to introductory text.The first chapter is on "the interpretation of the phenomenon of the uncertaintyof the criminal judgment". Criminal judgment to determine whether or not we needthrough historical analysis and practical visits to fully sort out and analyze, in order toobtain accurate answers. First, the review on the history of the criminal judgmentcertainty debate. Understanding of the certainty experienced from early in thrall, todoubt and criticism, to the process of maintenance and counterattack, and finally hadto admit that absolute certainty is not available, the absolute uncertainty does not existany an absolute point of view will be toward the extreme of non-rational, so theuncertainty of the phenomenon of the criminal judgment is an objective reality.Second, examine the uncertainty of the judicial practice of criminal judgment. China'sjudicial practice, there are a lot of conviction or sentencing full of controversial cases, these cases often happen to come to judge the results of twists and turns. Several casesfrom the judicial practice typical start to examine the special or difficult cases in thejudicial practice in China is how to be processed, and case specific referee process ishow. The analysis of these cases, and ultimately concluded that: China's judicialpractice, the instability of performance of the criminal judgment is very obvious thatthe uncertainty of the criminal judgment is indeed an objective existence, and notaccidental.The second chapter is on "the basis of the criminal judgment". China's criminaljudgment form, including on the basis of the facts and the law of two parts. First of all,the fact is that the criminal judgment of the logical starting point, the fact that thecriminal sentence has a fundamental role. In the field of criminal judgment, the fact isdivided into objective facts and referee the fact that, as a referee is a referee factsreferee facts based on objective fact-based, with a certain ambiguity, and there is asituation that deviates from the objective facts, constraints certainty of the criminaljudge the results. Second, China's current criminal legal sources, including the PenalCode (Criminal Laws Amendment), standardized single criminal law, subsidiarycriminal law, the right to the Interpretation of Criminal Law criminal law text, but themost important source of law in China's criminal referee practice of the CriminalCode (including the Criminal Law Amendment), and the right of criminal lawinterpretation (including legislative interpretation and judicial interpretation). 1997"Criminal Law" is the most important source of law in China's criminal judgment, thestatute law with the requirements of stability, China's legislature adopted a criminallaw amendment in the form of revision and supplement the Penal Code, promulgationand implementation of a total of 8 of the Criminal Law Amendment case in order tomeet the legislative requirements of the practice of criminal judgment. Legislativeinterpretation of Criminal Law and Criminal Judicial Interpretation and supplementthe Penal Code as the origin of China's criminal law of the referee activities, play inthe criminal justice practice guidelines for the referee's function.The third chapter is on "the reasons led to the uncertainty of the criminaljudgment". First, the limitations of the legislation itself, which is the criminal lawnorms apply is not clear, original important factors to judge the results uncertain,including the criminal law standard expression of the plight and the plight of twoaspects. Second, the criminal law to explain the constraints, on the one hand, our highlevel of abstraction of the criminal law to explain can not achieve the objectives and functions of interpretation, judges interpret the law to become a necessity; the otherhand, the criminal justice explained there are some problems, to bring confusion to thepractice of criminal judgment. Again, the guiding role of the criminal policy. Sourceof law for criminal policy is not a criminal judgment, but then criminal referee playsan important impact, including direct and indirect impacts. Secondly, the judge on theactivities of criminal judgment, including the judges' interpretation of the law thecriminal referee and judges personal factors impact on the criminal judgment. Finally,non-judicial factors, including the pressure of public opinion and public opinion onthe criminal judgment, legal experts, scholars of criminal judgment, politics andpower factor of the interference of the criminal judgment.The fourth chapter is on "the way out of the uncertainty of the criminaljudgment". This article from the judicial level to seek abatement of the uncertainty ofthe path of the criminal judgment. First, some adjustments to our existing judicialrunning links. One is to improve China's legal interpretation of patterns, including thecriminal law to explain the specific, uniform judicial interpretation of the position,give full play to the role of judges in the interpretation of applicable law; cancel thecourt to change the Accusation system, the increase in the proceedings, requestAttorney authority to change the Charge of the program to replace. Second, insist onthe independence of the judiciary. Rational treatment of public opinion and the viewsof experts and scholars. Finally, attention has already decided the role of the criminalcase. Although our country has already decided the case has no legal effect, but toguide and refer to the activities of the criminal judgment. In this paper, the release ofthe main guiding case, the effectiveness of the cases, case selection, and abolishedseveral ways to reconstruct a national, unified case guidance system.