Research On Sentencing Model

Sentencing is a complex system. It is a punishment production line in order to solvethe problem of unbalancing penalty which is based on same raw materials. It is neces-sary to design a scientific and reasonable punishment production line, so that the sameraw materials not only produce the same product, but also produce the products of highquality. Such a penalty production line, which is based on the prototype of sentencingprocess, is a substitution called sentencing model. This paper takes the sentencing mod-el as the research object. With the analysis of other known models of Chinese and for-eign countries, this paper aims to seek out the inherent law of them, so as to give theo-retical support to the establishment of sentencing models of our country. Except the in-troduction, this paper is divided into seven parts, which are overview of sentencingmodel, evaluation of Chinese and foreign models, the standard of sentencing model, thestructural relationship between the circumstances of sentencing and penalty, the quantityrelationship between the circumstances of sentencing and penalty, comparative study ofsentencing model of individual crime, the sentencing model of dead penalty and lifetime imprisonment. Now below is the brief introduction.Introduction: In the research of sentencing model, in order to avoid the unnecessarydisputes caused by unclear concept, it is necessary to first related concept of discrimina-tion, in order to make clear its connotation and denotation. Thus in the key part in theconviction and sentencing equilibrium and sentencing imbalances entity control andprocess control sentencing mode and method system model and the sentencing of thefive studies the concept. Although the sentencing of the conviction of the judge is dis-cretion activities, the judges’ discretion is not correct exercise even abuse of mainly dis-plays in sentencing, so it is necessary to formulate specific sentencing standard, so thatfrom the solid on the judges’ discretion in sentencing balance control is in essenceblame punishment which is suitable in the reflection of the sentencing of the principle,therefore is not same crime same punishment different crime different punishment, butwith a different vision with the principal responsibility for all is according to the crimi-nal responsibility even the size of the allocation of punishment, and reflects the criminalresponsibility of different cases in proportion between the punishment or longitudinalrelations; Value is to point to the same case for criminal responsibility should be thepunishment of the same discretion, reflects the criminal responsibility of the same case of the transverse relationship between punishment sentencing as the judge based onfacts and law free cutting sentencing.Chapter1: sentencing model in the paper. The sentencing of the model is to thiscomplex pointer sentencing system and of the design reflects the judge, given circum-stances of punishment and the relationship between artificial systems. Whether the tra-ditional predicted sentencing, or the standardization of the now sentencing, are for thesentencing of a kind of artificial design or artificial system, only the former judge byeach of the sentencing of the experience, the judges’ discretion is bigger, the latterguidance and detailed rules for implementation by the constraint, the judges’ discretionis small. Due to the guidance and the detailed rules for the implementation of the sen-tencing model is established in "sentencing standardization reformation" the back-ground, different from other theories or judicial sense of sentencing model called"standardization sentencing model". In order to theoretically in "standardization sen-tencing model further study, this paper it contains the abstract of the categories andsummarized, and an explanation of its meaning. These concepts including "startingpoint punishment" and "starting point penalty plot","increase punishment" and "in-crease punishment plot","to the adjustment of the benchmark punishment than" and"adjusting the punishment plot" and so on, and in the fourth chapter and five chapters onthe special research. Standardization sentencing model of the above provisions aboutgiven circumstances enabled us to convicted circumstances and given circumstances ofthe relationship between the new thinking. This paper argues that convicted and givenare two different levels but, related activities, the basis of is all about with the crime ofsubjective and objective facts, the same facts both as a condemned the plot and as agiven circumstances of this plot and not repeat evaluation, but two kind of different lev-els of the evaluation of the different nature. As a convicted in plot is a qualitative evalu-ation and macro assessment, as when given circumstances is a quantitative evaluationand microscopic evaluation. Convicted circumstances and given the plot is not mutuallyexclusive, both is in essence a kind of cross relations. Of course, given circumstances inscope than conviction on the more extensive plot, plot is usually in sin convicted plot,the extremely individual cases may be guilty before the plot, and given circumstances inthe plot for sin, there’s plenty of before and after sin plot. Sentencing model to the coreof the size of the discretion of the judge, according to the model of the sentencing of thediscretion of the judge’s limited degree, can put the sentencing model is divided into twokinds, one kind is "strict limits discretion of the judge of sentencing model", another kind is "to give judges larger discretion of sentencing model". According to our coun-try’s situation, and standardized the aim of reform from sentencing is regulate thejudges’ discretion to see to strictly limit the discretion of the judge of sentencing modeljudges larger than discretion of sentencing model more in line with the current situationof our country and needs. A sentencing model is superior, shall, according to the justice,operability, the criterion for judging the adaptability.Chapter2: the Chinese and foreign sentencing model comments. Through to thecommon law countries, the mainland legal system country and China mainland area ofsentencing model in the theory and practice of the introduction and analysis, this paperholds that although the sentencing of the imbalance in every country exists, but thecauses of the same. If the conviction that range is too big, given the judge larger discre-tion, is the common reason for sentencing imbalances have words, so the judge qualityis not high, the lack of judicial independence, lack of sentencing program control of, ismore serious imbalance in sentencing special reasons. If the "American sentencingguidelines for strict constraints the judges’ discretion in sentencing too mechanical dis-advantages, compared with discretion may be caused by excessive sentencing don’tbalance the disadvantages of the larger, so it is necessary to get this sentencing guide-lines from the mandatory rules into reference rules of words, so in China, because theabove special reason, give the judge too much discretion will be disastrous, and giventoo mechanical compared, too much at the discretion of the disadvantages of it more.Therefore, we better to be in strict sentencing rules under the restriction of the relativelyfair but mechanical sentencing, but also not in the larger the discretion of the cases ofso-called can play the judge subjective initiative of wanton sentencing. We may needmore than abroad through scientific sentencing model to limit the judges’ discretion, soin theory of scholars in our country the sentencing model research can be quite activeand made some achievements. The sentencing model theory including "analytic hierar-chy process sentencing model","benchmark sentencing model","precision-guided sen-tencing model","machine learning sentencing model", such as the justice departmentfinally established the sentencing of the standardized it lays theoretical model based.Chapter3: sentencing benchmark. Sentencing benchmark has both broad and nar-row sense. Broad sentencing benchmark is the notion that the judge should considerwhat items when sentencing and what penalty should be imposed according to the prin-ciple of conviction. Criminologists in Germany and Japan study sentencing benchmarkon the broad sense. It is not necessary to study the sentencing plots, sentencing princi- ples in broad sense, which only makes concept confused and theory complicated. Thepurpose of studying sentencing benchmark is to regulate the judges’ discretion and real-ize the balance of the sentencing in the relative law of abstract given circumstancessentencing principle. On the basis of specific sentencing standard through a prescribed,and should be from the specific standard of sentencing the point of view of the defini-tion and research sentencing benchmark, which is the narrow sense of sentencingbenchmark. If the sentencing benchmark is understood as "a heavier punishment orfoundation”, it is not only a sentencing benchmark abstract of the crime or a minimumof the crime of corresponding to the punishment, including the fact that more than crimethe punishment of the decision, but today in academic circles also failed to the conceptof sentencing benchmark agreed on. About how to determine sentencing benchmark,there are many different views, such as the centre line theory, points lattice theory, a sincertain theory, the situation theory, main factors of theory, center of gravity in our coun-try criminal law educational world. The method proposed is a lack of empirical basis,which is related problems of thorough research, so they are untenable. In fact, thebenchmark theory in the system in the sentencing is incomplete. Although we also usestandardization sentencing model,both the distinction have essence. With standardizedsentencing model, we can use "sentencing benchmark" the meaning of fuzzy conceptwhich has no theory and practice meaning, so the benchmark theory can sue sentencing.Chapter4: the structural relationship between circumstance for sentencing Crimeand penalty. Crime is the premise of punishment, the punishment is the legal conse-quence of crime, and crime is subjective and objective facts that the plot structure, sothe macroscopic crime and punishment in the relationship are microscopic sentencingplot. Different given circumstances reflect not only the social harmfulness or personalrisk of different sizes, to decide the punishment is different, and they also reflect socialharmfulness or personal risk in different ways. Although a sin punishment is the sum ofthe punishment of the corresponding amount, not the amount simple addition of pun-ishment, it has certain composition structure. The standard of the sentencing model sce-nically reveals the sentencing plot and the punishment of three structure relationship.First, it is the starting point penalty sentencing the start point of the plot and the abstractof a sin basic punishment relationship. For the crime of identity, although different casesgiven circumstances can’t complete between the same, it contains the same legal sen-tencing range of corresponding minimum sentencing plot that punishment is the startingpoint of the same plot. The corresponding sentencing starting point is exactly the same, so the starting point of the plot and the corresponding punishment sentencing startingpoint is for the abstract in a sin, to reflect the abstract of a sin basic punishment rela-tionship. Second, it is the relationship between increasing punishment plot and increas-ing the amount of punishment of a specific sin. Because the different cases of identityincrease punishment are different plot, every increase punishment corresponding in-crease of plot punishment be alone there, other increase punishment corresponding in-crease punishment plot influences on amount will not affect other increase punishmentcorresponding increase of plot punishment. Therefore it reflects increased amount ofpunishment increase a specific sin of alone increase punishment relationship. The last isto adjust the plot and adjust the punishment than a whole adjustment of specific crimepunishment relationship. To adjust punishment the circumstances are not according toits social harmfulness or personal risk to increase the size of the punishment of alone,but through the whole of the crime it is harmful to the society or personal risk to the sizeof the impact on the benchmark punishment a certain percentage of the increase or de-crease, so adjusting to benchmark punishment of plot punishment than reflects the reg-ulation of a specific sin whole adjustment punishment relationship. There are two typesof regulation punishment plot, that is the first order adjust plot and the other adjustmentpenalty punishment plot. When the two types of regulation punishment plot existing atthe same time, the first kind of circumstances according to "addition and subtraction"identifies the plot than regulation, then the desire of the two with the regulation accord-ing to the "phase multiplication" than to benchmark punishment on the adjustment inorder to regulate the punishment of the after.Chapter5: the quantity relationships between given circumstances and punishments.There are two kinds of relationships about the sentencing plot and the quantity relation-ships of punishments. One kind is the "point" of the quantity relationship, which is giv-en circumstances the corresponding punishment or regulation is a specific value ratherthan the range; The other was a "picture" of the quantity relationship, which is givencircumstances the corresponding punishment or it can be an amplitude of the change.When a given circumstances is the social harmfulness or personal risk to determine thesize of the constant, its corresponding punishment should be a specific value. For quan-tifiable given circumstances, since each quantitative values, its role in social damage orperson of the size of the risk is the only certain, so each quantitative values correspond-ing punishment should be a specific value. There is no quantitative given circumstances.If the judge is the social harmfulness or personal risk to the size of the judge, he should be a provision for a change range. The judge in the case of the choice of appropriatepunishment or adjust ratio, if the plot itself has no difference or even though differences,but the judge in the case can’t make difference, it should be a regulation to be a fixedvalue, lest the judge disoriented and lead to choose freedom. Therefore, the sentencingof the plot itself can’t quantify the variability of the judge, and the judge can be corre-sponding punishment decision which is a "picture" of the main reason. The sentencingof the starting point is the minimum sentencing plot corresponding punishment. And aminimum of sentencing is the only certain if the circumstances are obviously. It is onlya "dot", not a "picture", so the sentencing of the starting point should be a specific pun-ishment rather than a punishment extent. The amount of crime and crime number oncriminal facts are mostly consequences quantifiable given circumstances, so increasingthe punishment is generally specific punishment rather than punishment extent. There isa plot itself changes of scope, the corresponding adjustment is not only a range, and ad-justing the plot may change torture cap and the lower limit of the upper limit of the ad-justment. Each position among the adjustment of the punishment is one-to-one rela-tionship.Chapter6, the comparative study on single crime sentencing model. Standardizationof punishment sentencing model structure grasps the relationship right though. Differentdetailed rules for the implementation of the criminal punishment and the starting pointof the starting point, increasing the punishment and tortured plot increase punishment.Adjust ratio and adjust plot the regulation of punishment,the circumstances are not onlythe bigger difference, and there are many shortcomings, so this paper makes the repre-sentative "Guangdong detailed rules" and "Jiangsu rules" provisions as an example. Wemakes a comparative study on the traffic offences, rape, theft and smuggle, traffic in,transport or manufacture narcotic drugs and so on.they are on behalf of four differenttypes of crime. we compare them with one another by sentencing model and put for-ward some corresponding suggestions.Chapter7, the sentencing model of death penalty and life imprisonment.Althoughnormalized sentencing model provides no standardization between death penalty andlife imprisonment, but With the reform deepening, this model should include more ac-cusation and enlarge the scope of the punishment. The death penalty and life imprison-ment should be included in the model. This paper argues that the crime causing deathdirectly or indirectly should be an essential condition for a sentence to death. In addition,we also should consider whether there are circumstance for sentencing which prevent death or influence applicable death penalty.Only when there are no circumstances forsentencing to death can we sentence the criminal to death. Because there is a disconti-nuity between the imprisonment of15years and life imprisonment, from the steps of thepunishment of the crime and the ladder of corresponding relation, the punishment ofthe crime is corresponding to the fault with no suitable punishment. The result is neces-sarily either an imprisonment of15years or a life imprisonment. It is obviously not fairif we sentence a crime more than15years of imprisonment to life imprisonment, whichmeans in the criminal punishment fault all heavy sentence to life imprisonment. The fairway should divide a crime in the fault of punishment into two parts, and the one close tohalf of the15years imprisonment shall be sentenced to a15years’ imprisonment, theother close to the life imprisonment shall be sentenced to life imprisonment. If we con-sider the life imprisonment as a45years imprisonment, the median of15and45years’imprisonment is30years’ imprisonment, so we can consider the sentencing standard of30years as the standard for life imprisonment, that is, a criminal as many again as15years imprisonment of can be sentenced to life imprisonment. If a crime should besentenced to more than15years of imprisonment but less than30years, it can be onlysentenced to a15years in prison. The chapter makes a concrete analysis about thesentencing standards of life imprisonment and the death penalty about the crime of in-tentional injury, crime of pillage and Drug trafficking transportation manufacturing sin.