Sentencing Theory

I choose The Basic Criterion For Sentencing as the topic of my dissertation for the following reasons. First of all, in Chinese Criminal Law it is considered insufficiently for the rule and elements on the discretionary action of sentencing. For instance , the objective of criminal penalty such as General Prevention and Special Prevention are not regulated well when judges think over sentencing. This will result in conflicts between standpoint and mentality of judges. The conflicts could produce the unbalance of sentencing. Therefore this dissertation suggests that judges should consider over more the rules and elements and scopes of sentencing when they hear and decide cases. Secondly the charge in an indictment regulated in The Criminal Law is more generalized and the scope of prescribed penalty is more elastic. The power of discretion of both judge and court seem beyond the power. The criterion for sentencing is not concrete. Thus some judges think there are no difference between severe punishment and light punishment if they made correct discretionary action of sentencing. What they do lead an unbalance of sentencing and unreasonable sentencing among the courts in one province , the courts in different provinces and even in same court during a period of time. My dissertation will solve this problem.This dissertation consists of two parts. The first part is The General Theory On Criterion For Sentencing. The Second part is The Special Theory of Basic Criterion For Sentencing.In the first part, I'll show the concept of the basic criterion for sentencing; the theoretical evidence of making the basic criterion for sentencing; the development and present situation of it and author's comments on it; the theory and the assumption of making the basic criterion for sentencing in China; the official body of making the basic criterion for sentencing; the courts carry out the criterion by the way of consulting or by the way of accordance; the main elements of sentencing when judges try cases according to this criterion etc.1. The Concept of Basic Criterion for Sentencing.There are many arguments on this concept. The Japanese scholars suggest that the elements of criminals' age, responsibility and characteristics should be considered when judges execute discretionary action of sentencing. These elements are called basic criterion for sentencing. The scholars from Taiwan pointed out that rule and element become the basic criterion for sentencing when judges hear and decide cases. The scholars from mainland China said there is no difference between the concept of basic criterion for sentencing and the principle of sentencing in terms of the harm to society and the danger to human being. But most of scholars in mainland think basic criterion for sentencing is basic consideration which a criminal should be punished under the state of completed offense. Therefore there are two points of views on the basic criterion for sentencing. One is that judges should consider the principle and element of sentencing when they pass sentences. The other is the typical state of criminals should be considered when judges pass sentencing according to or consulting the criterion and scope of penalty.To summarize all ideas, I think the basic criterion for sentencing is the principle, element and weight of punishment, for the typical state of criminals, that judges should consider over when they try cases. This concept contains two basic criterion-the basic criterion for sentencing of the principle and the one of the application. The former is the executive condition of the later one.There are no concept of basic criterion for sentencing both in British and America Criminal Law. But in an American book The Guidance for Sentencing, in which the author related the hierarchy of criminal and its corresponding penalty are similar with the concept of the basic criterion for sentencing of application related in my dissertation.2. The Theoretical Evidence of Making Basic Criterion for Sentencing.In term of basic criterio...