On Sentencing Reasonable

The measurement of criminal penalty is such activities that in the light of the corpus delicti and other factums, the judge decides whether to punish the guilty person, which types of punishments should be given, whether the original punishments should be changed or which types of non-punishments should be used. The reasonable of measurements refer to on the basis of the specialties of the case and the rules of the cognition, the judge decide the penalty measurement of the case contributed by the clear logical process, his life experiences and an agile mind. It also means the measurements can withstand the jurisprudential examination and ethical criticism.Firstly, the unity of revenge and prevention founded on the necessity of penalty is the valuable target supporting the measurements of punishments. The criminal penalty itself is the institution or measure to deal with crimes. We might separate revenge from prevention on the abstractive lever, but in the institutional environment they each are the part and parcel of the other. But we should pay our attraction to the unionism which should be restricted within the range of protecting the human rights directly or indirectly with such indispensable democratic systems or available public resources. Above all, the conception of crime means the action which should be punished. The principal of suiting punishment to crime and criminal responsibility means the severity of penalty should be commensurate with the criminal qualities and quantities. And more, we should consider how the offender integrated into society, which has close relations with the offender's behaviors. So, the judge's measurement should be carried out the principal--on the basis of facts, and with the law providing the criterion--in which the range of measurement facts is lightly larger than the criminal facts, as to the law providing the criterion, it refers to the criminal rules interpreted by the body of law meanings for detail cases.Secondly, the fundament of penalty measurement is the sums of rules which have been united and integrated by different sources and forms around the criminal code. As always, we should have the accurate explanation of law when we heard whichever the law providing the criterion or law showing meanings. What the accurate explanation means is just constitutionality of such explanation. For the subject of interpretation, the interpretation made by the major judge or his group should be appreciated mostly, and there is the good outlook for using the typical case to guide the practice of penalty measurement. In china, the system of the criminal rules has been matured and the judicial system has been stereotyped on the basis of the written law. People are always on the alert for substituting orders to laws happened frequently in history. Above all, the transition from the typical case to legal precedent which becomes the new formal sources and forms of criminal law is advantage to realize the reasonability of penalty measurement. As for the judicial interpretation made by the Supreme People's Court and the Supreme People's Procuratorate, or so called "the secondary criminal judicial interpretation" made by the higher people's Court and provincial Procuratorate, they had played important role in guiding the practice of penalty measurement, particularly the later haven't the identification like the former but it is practicality for its the detail context as good as the former, which has the dangers that they interpreted the rules by rules was prone to empty the requirements of rules or exceed their authorities to interpret that could weaken the basic requirements of rule of law potentially.Thirdly, the basis on the facts of the penalty measurement is a system of measuring punishment circumstances, which is constituted by the corpus delicti and the other facts happened before or after the criminal behavior. There are five types of it which include the facts according to the level of penalty measurement, the facts reflecting the crime's extent of damages objectively and the offense's degrees which can influence the level of punishments, the facts influencing the degree of punishment within the range of legal penalty in which some hasn't corresponding statutory sentence's amplitude written in provisions, or reflected the responsibility of the subject of crime, the facts such as recidivist, criminal record, casual offender and first offender, rescue the victim, compensate the victim's loss, returning spoils, voluntary surrender, making a confession, some other facts influencing the application of penalty measurements. The reason why we establish the system is such arguments: (1) the corpus delicti is the core of the system of measuring punishment circumstances; (2) the aims or motions, ways, place, time, the objective results relative with the crime reflect the degree of the criminal behavior's social harm and the offender's guilty which are very crucial in measurement so that they shouldn't be regarded as the 'consideration circumstances'; (3) afterward the processing of determining the recidivist and determine the heavier punishment should consider the adhesiveness of fundament, space, the degree of punishment. (4) Realizing the reasonable measurement shouldn't only expect to make statutory circumstances. In the opposite, the key of clarifying the function of measurement circumstances is "distinguish facts by facts".The logic of applying the system of penalty measurement in the thesis is that (1) the conflicts among many circumstances had been settled in the process of establish the system of penalty measurement in which we distinguished the circumstances those whether are functional and thedegrees of them.Fourthly, it contributes to the clarification of rules of penalty measurements that to get the conceptions of the level of penalty measurement and the penalty specification and so on with the development of the logical thinking. In the application of the types of punishments, it is the most important that the discretion of application of the execution, peccadillo or non-imprisonment. The level of penalty measurement is the basis quality of penalty measurement which has been decided by the case ensured to apply the statutory sentence in some degrees, the means and the objective extent of harm corresponding to the accomplished offense. The benchmark of penalty measurement as the offender has the mitigated circumstances means the lower limit of statutory sentence according to the criminal behavior. As for the simple or little range of statutory sentence, the benchmark of penalty measurement means the quantity of punishment according to the corpus delicti and offender's behaviors. At present, the benchmark of penalty measurement of the common crimes such。as crime of theft; crime of robbery; crime of intentional damage; crime of snuggling, trafficking, transporting and manufacturing narcotic drugs; traffic accident crime; crime of rape; crime of swindling; crime of seizing by force; provoking fights and quarrels and making trouble, and the crime had typical measures should be settled on the base of the average measurement quantity statistics. The penalty specification means the space of punishment formed by detailed the extent of the statutory sentence, which can be used as the benchmark of penalty measurement as well as to correspond with the function of the circumstances either. Finally, for the two conceptions are conceptual and political, the reification of these should be done by courts or major judges.To the institutional conception, the author is inclined to propose the cautious practice. First, for the transition from the strict applying the execution to abolish it, the execution limited in the trial of first instance is the long run count measure. Presumed that the summary capital punishment could be controlled within the cases of intentional cause death through the judicial level, the quantity of it would be decreased. If the probability of capital punishment applying to crime of snuggling, trafficking, transporting and manufacturing narcotic drugs and crime of abducting and trafficking women and children is zero, judge will be discretion of execution when there have the aggravated circumstances of the crime of rape, crime of robbery, then the capital sentences would be decreased in the trial of first instance. Those are expectable achievements by phases. Second, the main type of punishment of the lightening offense is the sentence of the not more than three years of fixed-term imprisonment or criminal detention nowadays. Before we have the sound compensation institutions for aggrieved persons, we should not excessively apply the probation. Otherwise, there two effective ways to correct and proper the fine that institutions of investigating the criminals and accelerate the application by enforcement.Fifthly, except the judge's personal factors, those elements of influencing the penalty measurement also are including such institutional effects, for instance, the changeable political orientation, the suggestions made by procurators, criminal reconciliation, and inertial administrative behavior. One, the concrete criminal strategies are changing with the variety of crimes and the requirement of decision-making which might be damaged own unity by decision-maker's one-side understandingand pursuit. Therefore, concrete judicial strategies should strictly confirm with the basic requirements of balancing between the crime and penalty in heavier crimes, which makes the correspondence to the core of criminal strategies, avoids replacing the laws by politics, makes lenient sentences but not to tolerate the lightening offenders, realizes the social defenses, controls the cost of it effectively. Two, as the procurator is who accuse of crimes on behalf of nation, it is understandable that he want to make the defendant sentenced. But owing to the responsibility of persecuting, procurators might have a preference of value, so the right of freedom decision is not transferred. Three, despite that courts or major judges confirm the influence by offenders' factors to penalty measurement through observing the probably criminal reconciliation does not excess the facts of measurement, the punishment mitigated is not only come from the confirmation of these factors. It not only embodies the character of civil society but also relocate the ways of taking responsibilities or liabilities reasonably. The most important thing is that some reconciliation can help judges choose the manner according with the extent of the damage in typical cases by establishing, merging and even stereotyping some new measures of punishment, which would inject new life into the whole operation of criminal institutions. At the some time, how the judges do to keep their independent in the strong pull of the inertial administrative behaviors is always object of study that remains perennially refreshing...