Sentencing Process Research

Sentencing procedure could be defined as the process which the Judge render the sentencing judgement about the convicted person, and also could be defined as the procedure rules which regulates that process. As the object of the research in this dissertation, Sentencing procedure is the general term of the sentencing procedural rules which decides the phase, order and the way of the sentencing discretion provided by law. Those rules include not only the rules that regulate the legal status of the sentencing procedural subject and its rights and obligations, but also include the rules that regulate the sentencing course and fact-finding of the sentencing facts. The systematically research of the sentencing procedure could enlarge the spectrum of the criminal procedural law theories and satisfy the emergent needs of the coustruction and improvement practice of the sentencing procedure. This dissertation is devoted to give a systematically and thorough survey of fundmental theory and practice issues of the sentencing procedure from the angles of the value, cross-cultrual, positivism, and other approaches.Sentencing justice is the chief goal and criterion of the construction and improvement of the sentencing procedure. As the pepole’s good hope to the excetron of the punishment power, the sentencing justice has the decisively effect to the achievement of the criminal justice. Sentencing justice include both the substantive justice and procedural justice. Decided by the different notions about the object of the punishment, the sentencing jutstice could be judged by both the substantive and formaltive ways. The coustruction and improvement of the sentencing procedure could not only ensure the thoroughly inverstigation of the sentencing facts and the recognition of the sentencing justice from the parties and the common people, but also could realize the banlance of the needs which endow amd restrict the sentencing discretional rights to judge. The sentencing procedure should also fulfill the requirements of the criminal Due-process, which are constitutive of the three criteria:parricipation, publicity and reasonableness.The procedural conformation of the sentencing procedure is very different from the conviction procedure in the aspect of the procedural structure, which refleceted by the legal status and relationship of the rights and obligations of the procedural subjects. The aim of the sentencing hearing is ensure the effective participation of those procedural subjects. The prosecutor and the defendant parties of the sentencing hearing are not genuine contestant but equal participant. The role of the decision-maker of the sentencing hearing is active instead of passive. The structure of the sentencing hearing is not triangle and the victim and people from the relative social organs play an important role in the sentencing hearing. The Strict-proof model, the Direct-oral testification and the Cross-examination rules of the factfinding is not adopted in sentencing hearing. Thus, the hearing-type procedure, not the trial-type procedure should be applied in the sentencing, which has also be demonstrated in the sentencing practice in the Anglo-American legal system.Sentencing facts is the facts about the crime and the convicted person in relation to the sentencing, expect the convicted facts in the certain case. Sentecing facts belong to the facts in case and cross-related with the corpus delicti. From the pointview of the procedural legal studies, the sentencing facts could be divided into two groups, the facts overlapped with the corpus delicti and the facts separated from the corpus delicti. Moreover, the latter could also be divided into two categories, the facts which regulated by the written law and the facts which decided by the judge’s discretion. The principle of the thorough investigation and examination of the sentencing facts should be applied durning the course of the construction and improvement of the sentencing procedural and evidential rules. The sentencing facts which overlapped with the corpus delicti and regulated by the written law should be investigated by the police and prosecutor and examinated by the way of the Strict-proof, while the sentencing facts which decided by the judge’s discretion should be investigated by the special social organtion and demonstrated with the way of the Free-proof.There are two different sentencing procedural systems in the world. The British and the US, on behalf of the Anglo-Ameirican legal system, adopt the separated sentencing procedural model. Its characteristics could be summarized as follows: firstly, the sentencing procedure is separated from the conviction procedure; secondly, the participant rights of the sentencing procedural subjects are effectively safeguard; thirdly, the sentencing facts which separated from the corpus delicti are inverstigated by the special social organs; fourthly, the procedural and evidential rules of the sentencing procedure are very different with the convition procedure; lastly, the detailed reason of sentencing in the written judgment is not compulsory. The jury system is the important but not the sole cause of the evolvement of the separated sentencing procedure in the Anglo-American legal system. The France and the Germany, on behalf of the continent legal system, adopt the mixed sentencing procedural model. This model has the following four characteristics:firstly, the sentencing procedure is mixed with the conviction procedure; secondly, the sentencing facts, whether separated from the corpus delicti or not, are investigated by the criminal justice organs; thirdly, the participant rights of the sentencing procedural subjects are restricted to some extent; lastly, the detailed reason of sentencing in the written judgement is required by law. Rencently, the mixed sentencing procedural model has been challenged by the specialist and some of the legislator in the continent legal system countries. As a result, the International Criminal Court has adopted the relatively flexible model of the separated sentencing procedure.China is among those countries who adopte the mixed sentencing procedure. The current sentencing procedural system in china has taken the important role in safeguarding the sentencing justice. Meanwhile, there are some weaknesses in this system, such as the inverstigation of the sentencing facts, the publicity of the sentencing process, the effective participation of the parties and the demonstration of the sentencing reason in the written judgement. Thus, the Suprem Court of China led and impelled the sentencing procedural reform and achieved the postive progress, which reflected by the judical regulations about the sentencing procedure. The local courts, who actively participated in the sentencing reform, have acquired much experience in practise. Nonetheless, some fundmentally importante issues, such as the choice of the sentencing procedural model, the construction of the sentencing hearing procedure and the fact-finding system of the sentencing facts, are not resolved during the forgoing sentencing reform movement. Thus, the committment of the sentencing reform in china is still not fullfilled in this stage.Due to the criminal procedural law system, the criminal justice practice and the current resource status, the relatively-separated sentencing procedural model should be adopted in China. Although the separated sentencing procedural model could effectively safeguard the sentencing defendant rights of the plead-not guity defendant, it is not realistic and applicable in Chinese criminal justice system. Under the relatively-separated sentencing procedural model, the sentencing procedure has relatively independence, which could ensure the thorough discovery of the sentencing facts and the effective participation of the sentencing procedural subjects, while its relativity is more compatible with the current criminal justice system in China. Therefore, the construction of the Chinese characteristics relatively-separated procedural systems should be taken by introducing the relatively-separated sentencing hearing procedure, impoving the excisement of the sentencing recommendation rights of the prosecutor, reinforcing the restriction mechanisms of the sentencing discretion of the judge and establishing the demonstration system of the sentencing reason in the written judgement. Moreover, the special instruction and announcement system should also be introduced under the relatively-separated sentencing procedural model to resolve the puzzle of the construction of sentencing procedure in the circumstance which the defendant plead not guilty at trial.