A Study On The Discretionary Circumstances In Criminal Law

Discretionary circumstances as a criminal plot, carrying the function of coordinating therelationship between the written criminal law limitations and reasonable flexibility, is thebridge of connecting legally prescribed punishment for a specified crime and the principle ofsuiting punishment to crime, is the behavior of social harmfulness degree table, so it has animportant influence in accurate conviction and appropriate sentencing. In recent years,discretionary circumstances gradually become the interesting topic for more and morescholars, but lots of problems have not been solved properly or not been given due attention.This article is based on clarifying the concept of discretionary circumstances, further analyzedits relationship with the crime punishment legal principle, classified introduced commondiscretionary circumstances of form of expression and the theoretical foundation, detaileddiscussed the effect in the conviction and sentencing, and put forward suggestions to improvethe discretionary plot development, to get the attention in theory, to take benefit for correctconviction and accurate sentencing. Except the introduction, this article contains six chapters:The introduction introduced the source and significance of this topic, the currentsituation and problems of discretionary circumstances, etc.The first chapter introduced the basic definition of discretionary circumstances. Firstly itcomments on the traditional view of the concept of discretionary circumstances, followed bystarting from the nature of discretionary circumstances, to redefine the concept ofdiscretionary circumstances, and then explained the difference and connection betweendiscretion circumstances and statutory plot, discretion circumstances and the crime constituteselements. Scholars believe that the plot is only a type plot which impacts the sentencing intraditional way, and different scholar has different ideas in this point. This article argues that avariety of the traditional definition of a variety of defects, the most serious problems are two:firstly, only put discretionary circumstances as a kind of sentencing improperly narrowed thediscretion of the plot of the function, secondly, did not reveal the nature of discretionarycircumstances, did not meet the essence of definition in logic.To give a scientific definition to the discretionary circumstances, you must firstly graspthe nature of it. Due to the selection of discretionary circumstances are services in theidentification of crime and punishment to the offenders, the nature of discretionarycircumstances and the nature of the crime point to the consistency, but the nature of the crime is an objective harm by the acts of the perpetrator’s subjective vicious and personality defectsintegral harmful to society, it is essentially a discretionary circumstances reflect the extent ofthe acts harmful to society. Seize the nature of discretionary circumstances, and the differencebetween the legal plot and discretionary plot, you can define discretionary circumstances as:the law does not specify, but can reflect the behavior of the degree of harm to society, thusaffecting the conviction and sentencing facts. From the formal, discretionary circumstancescontains the compatibility of discretion and legal; from the essence, discretionarycircumstances can reflect the behavior of the degree of harm to society; from the function,discretionary circumstances can affect the conviction and sentencing.Discretionary circumstances and legal circumstances are two different but relatedconcepts, and they are essentially the same. The statutory circumstances play a role can not beseparated by the complement at the discretion of the plot. Also the legal episode in thelegislative process can be transformed into each other. The difference only lies that the later isnot specially provided in law, while the former have relatively specific provisions in law. Thecontents and functionality of discretionary circumstances is not clear, while the contents andfunctionality of legal circumstances can be identified.The discretion of the plot and the crime elements are abstract factors which affect theconviction, but a clear distinction lies in each other. The former reflects the size of the amountof behavior which is harmful to society, the latter mainly reflects the decision of the crime orhis crime nature; the former is an abstract of the facts of the crime, which is an abstract of thelaw; the former is reflected in the specific crime personality, the latter is reflected in crime incommon; the former is characterized by the social harm of the impact of crime, which ischaracterized by a rational understanding of the special nature of certain crimes; the former isthe essence of the external signs of the behavior of social dangers, while the substance of thelatter is to reflect the legal structure of the special acts which is harmful to the society; Theformer is not always a necessary condition for the establishment of crime, while the latterelements is the necessary condition to set up a crime.The second chapter is the relationship between the discretion of the plot and the principleof a legally prescribed punishment. Firstly, through the analysis of the drawback of theprinciple of legality formalism and the substance of doctrine two completely separateunderstanding, the author considers that the full formalism or absolute substantive doctrine tounderstand the principle of legality is not wise. The correct understanding should be in the blend of these two to find the right balance point. The discretion of the plot is the principle oflegality both understand the way mingled with one of the manifestations. Not only meets thelegal certainty of the formalism to understand the pro-gaze, but also concerned about theintrinsic value of the real understanding of the legal pursuit. Not only embodies the formalismto understand the personal freedom and the pursuit of value, but also embodies the substanceof doctrine understanding to defend interests of the community’s determination. Secondly,specifically questioned as the statutory crime and derived the principle of one of the principleof clarity, the clarity of the requirements to achieve the path in the regulation of criminal lawand the principle of clarity of the contents of the two perspectives and the focus of thediscretion of the plot and the clarity of criminal law the required consistency. That the clarityof performance requirements in the regulation of criminal law there are specific and clear andabstract clear in two forms those are formal abstract and clear on behalf of discretionarycircumstances. Although it has no legal requirement, it is reflected in the generality of theprovisions of the Penal Code General Provisions and sub-plot its specific content andfunctionality in a specific case basis makes sense to determine. So it belongs to the abstractclear areas. The discretion of the plot set criminal law standard written and the simplicity ofcriminal law norms and criminal law terms in popular as well as crime and the certainty in acompletely in the criminal law the principle of clarity of the requirements of the range.The third chapter is the classification of discretionary circumstances.It necessary toclassified the concept of discretionary circumstances and tease out the common representativein each category at the discretion of the plot, to understand its content and deepen theirunderstanding, and as a mutatis mutandis, to provide understanding and grasp of the path ofdiscretionary circumstances content, because of the widen and even infinite concept ofDiscretionary circumstances. This chapter classify discretionary circumstances by two criteria:According to the different forms to reflect the harm to society, one criteria is to be divided tothree sub-criteria which content discretionary circumstances reflected the behavior of theobjective degree of harm, discretionary circumstances reflected the subjective degree ofmalignancy of the perpetrator and discretionary circumstances reflected the degree of theperpetrator personality defects. This classification include two purposes, one of its purpose isto cite common discretionary circumstances (of course,the type of attribution rather thanabsolute),another purpose is to provide a more detailed analysis the principle of discretionarycircumstances which affect the conviction and sentencing. Another criteria was divided into three sub-criteria which content sin before, sin at the discretion of the plot, sin at thediscretion after plot and crime according to the existence of time. The later one also be usedrepeatedly.The fourth chapter is the influence of discretionary circumstances on conviction. Thischapter was divided specifically into three contents:Section1confirmed the legal standards of criminal establishment. This section, whichbased on qualitative and quantitative mode of the criminal provisions of the Criminal Law,provided a detailed analysis the logic embarrassing and dangerous situations result form crimeconstitution accommodated all the quantitative factors, rather, advocated that whateversubstantive interpretation of the penal provisions excluded the behavior outside the system orimprovements on quantitative factors into the quantitative requirements that would underminethe certainty of the crime, destruct the forecast possibility of nature and consequences of theirown acts of the national citizens, allow judges arbitrary, and even narrow improperly thescope of the criminal circle.One way that can solve the question is to breakthrough the traditional view that"constitutive elements of crime is the sole criterion of the establishment of the crime", and topull the uncertainty of quantitative factors which can not be accommodated out theconstitutive elements of crime, thus giving rise to formula, that “constitutive elements ofcrime+non-significant slight circumstances=the establishment of crime ". The formula showthat constitutive elements of crime and non-significant slight circumstances are necessaryconditions rather than sufficient condition of the establishment of the crime, and that bothconduct necessary and sufficient condition which establish a crime. Among which constitutiveelements of crime constitute a qualitative (the type of behavior) role, the non-significant roleof the Circumstances plays a quantitative role on the nature of harm to society. Circumstanceson non-significant has specific requirements of the two levels: first level of the requirementsof the circumstances are non-significant slight enough to be recognized as a crime, whichapplies the provisions of criminal law where no further generality plot was required; thesecond level requirement is that the plot is just non-significant minor which is not enough tocommit crime. If the circumstances are serious or vile extent, it would be able to set up acrime in this premise further, which applies to further the generality of the provisions ofcriminal law where the requirements of crime are general.Section2discusses the role of discretionary circumstances on the judgments of constitutive elements of crime determination. The section dividend constitutive elements ofcrime into containing elastic elements constitute a crime and non-elastic elements of the crime,then confirm that sin discretionary circumstances is the basis of the elastic elementcompliance of the constitutive elements of crime which based on the view that constitutiveelements of crime is a legal structure to reflect a special essence of the crime and thedistinguish standards between behaviors.Section3described that discretionary circumstances is the judgment basis of slightnon-significant circumstances. Firstly, the part gave an explanation on the establishment of alegal formula of non-significant minor requirements of the two levels, focusing on response toacademia slight command of the legal basis for criminal law where if the13of the PenalCode but the book is irreplaceable or not, and result that the13of the Penal Code isirreplaceable. If the cancellation of13of the Penal Code book is conducted, the provisions ofthe criminal law of many charges will not be able to perform. After the consolidation thenon-significant minor and the legal status of discretionary circumstances, the article allegedthat sin before, sin at the discretion of the plot, sin at the discretion after plot and crime ofdiscretionary circumstances are important materials to determine the circumstances.The fifth chapter is the role of discretionary circumstances in sentencing. This chapterdiscusses the connotation and denotation of the sentence, the sentencing discretion of the plotrange, the discretion of the Circumstances status and function. It is divided into three sections:Section1introduces the connotation and denotation of the sentence, in order to delineatethe field of play as discretionary circumstances in sentencing. This article talks about thesentencing, namely penalty discretionary, especially referring to the people’s court under thecriminal law, determining whether to impose penalties,what kind of penalties should beimposed and how to implement the penalty trial to the perpetrator of a crime.Sentencing is adynamic process.In the broad sense,it includes two stages before judgment and that issentencing and execution of penalties. The former refers to the final determination of thesentence and in what kind of way should it be implemented, and that is to say the punishmentwill be declared by the legal punishment, including whether the decision is applied topenalties and it can be applied to what kind of punishment,whether it can be applied to themultiple penalties, and whether it can be applied to the special reprieve penalty enforcementsystem. The latter refers to the transformation of the penalty during the implementation, thatis the sentence from declaring tne punishment to implement the sentence,or to be more precise, whether the penalty during the execution of the special system of commutation andparole execution of this penalty is applicable, and how to apply the discretionary.Section2analyzes the impact of the sentencing discretion of the plot range. This articleholds the idea that,on one hand, discretionary circumstances before,in or after the crime canaffect sentencing and the crime.And the first stage of sentencing discretion of the plot in time,and it will end the final judgment made before the second stage sentencing, probablyapplicable to commutation or parole after conviction of Final Appeal judgment plays an activerole in promoting the final judgment before the making of the crime at the discretion of thecircumstances and the crime, the crime before the discretion of the.The plot plays a negativeand restrictive. Discretionary circumstances of the conviction process, on the other hand, itcan also affect sentencing, and to do so does not violate the ban repeat evaluation principles.Only bans prohibit the principle of repeated evaluation of the same nature on the same facts,the repeated evaluation of the same angle, the same level or the same meaning, but not againstthe same facts the evaluation of different nature, different angles and at different levels ordifferent meaning, which is the Crime and Punishment phase to adapt to the inevitablerequirement of the principle. Repeated evaluation of the same discretionary circumstances inthe conviction and sentencing of two phases was used twice, but a closer analysis will revealtwo stages in the concern in the use of a different angle, the level of significance is naturallydifferent, and thus is not prohibited the principle prohibiting the list.Section3explains in detail the status and functions of the discretionary circumstances insentencing. On its status, discretionary circumstances must be considered in the sentencingprocess; its sentencing universal; in the sentencing process, at the discretion of the plot withthe statutory plot position of equality, there is no priority for the sub; a certain sense speaking,at the discretion of the Circumstances played a leading role. Terms of its function, theconcrete embodiment of the factors of the transformation of legal punishment to declarecriminal discretionary circumstances, is declared the penal execution, as well as declaring thepunishment to the implementation of punishment into factors.The sixth Chapter is perfect for the development of discretionary circumstances.The discretionary circumstances.must be considered in the conviction and sentencing,however, because of the connotation and extension of the legislation, discretionarycircumstances is not clear, the fuzzy status, functional uncertainty, Practice easy to bedogmatic judge ignored which resulting conviction deviation, sentencing misconduct is not uncommon. Therefore, this chapter:the one hand, cited the improvement of the criminal lawto judicial practice more mature discretionary circumstances statutory way to summarize theprovisions of prompt judges to attach importance to the use of discretionary circumstances;On the other hand, the use of judicial interpretation, sentencing guidelines and case combinedwith guidance on the way to regulate discretionary circumstances applicable in judicialpractice.The conclusion part summarizes the full-text research findings.