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Sentencing Methodology Research

Posted on:2007-04-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y L LiFull Text:PDF
GTID:1116360182491432Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The methodology of measuring penalty, as an approach to studying the theoretical system of sentence, has two strata of meaning. One is that the methodology of philosophy is applies to the region of the criminal jurisprudence to guide the research about sentence, which belongs to the metaphysical system info. The other refers to the approach to researching the problem of sentence in the region of the criminal jurisprudence, which is supposed to be technical system info. The methodology of sentence discussed in this article refers to the latter.This article has eight chapters, which consists of three parts: introduction, text and conclusion.In the introduction, the author concisely explains the major idea, defines the subject and province, and demonstrates the importance of studying the methodology of sentence from the institutional and theoretical point of view. By drawing on and assimilating the research findings on the methodology of jurisprudence, the author puts forward a polyphyletic and comprehensive proposition about sentence, and has shaped the system of sentence methodology primarily.The text is made up three parts, which expounds the system of sentence methodology from several aspects such as standpoint, premise and visual angle.The first part focuses on the standpoint of the methodology of sentence ,which is thought to be identical to the methodology of criminal law .Speaking specifically, in the contrary of individual and integrity doctrine, the methodology of sentence should insist on the balance between the individualism and collectivism; In the argument between the objectivism and subjectivism, the methodology of sentence should insist on the point of view that the act is primary to sentence and the actor is subordinate; In the conflict of absolutism and relativism, the methodology of sentence should adhere to the standpoint that the properness of penalty is primary to sentence and its rationality is subordinate.The second part touches on the premise of the methodology of sentence, including the statutory penalty principle, the principle of adaptation of crime and punishment and the principle of applying punishment equally. The first principle is so fundamental that the relatively definite statutory sentence provides judges with legal basis and criteria. The second principle not only reflects the initial demands of the fair punishment, but also is the important standard to consider the fairness of sentence. The third principle requires the judges should treat the criminal equally without discrimination and privilege thought in order to equally punish the criminal offending the same crime. Nevertheless, the judge should make a difference in accordance with different situation, and try to implement individual punishment.The third part discusses the problems of sentence from five aspects as follow:...
Keywords/Search Tags:Methodology
PDF Full Text Request
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