A Study On The Emotion In The Conviction And Sentencing

It is not an act on impulse of the scholars to do the study about the emotional factor inthe process of the conviction and sentencing. For a very long time, the emotional factor hasbeen ignored consciously or unconsciously in the field of criminal judicature based on the factthat we have no faith in the emotion but praise reason highly. However, in recent forty years,along with the development of the psychology of emotion, the sociology of emotion and thefrequent occurrence of grave controversial cases, it has become a focus for a part of scholarsto study the role what emotion factor is playing in the conviction and sentencing. Firstly,this thesis clearly defines emotion based on a collection of research works of relateddisciplines. It follows closely a systematic demonstration of the relationship between emotionand the conviction and sentencing. Then, the author discussed the role emotion plays in theconviction and sentencing through four subjects of the judge, the criminal, the public and thevictim. At last, the thesis comes up with the four subject’s interaction structure of theconviction and sentencing, pointing out that the emotion factor of the four subjects’ influenceon the conviction and sentencing. This thesis discusses questions in summary-part-summarystructure including five chapters except introduction.The first chapter is the basic theoretical questions of emotion. In this part, the thesis putsemphasis on the definition of emotion and the related concepts. After introducing the conceptsof emotion in psychology and sociology respectively, the author put forward emotion’sconcept in this context, that is, the emotion in the criminal law is a comprehensive concept.Firstly, it is a subjective experience in psychology which is an experience of attitude comingfrom the judgment whether the people’s need is met by the objective things. The criminal lawalso focuses on the object of pleasure, anger, sadness, the sense of moral, the sense of reasonand the aesthetic sensibility. All in all, the characters of emotion in psychology can also beapplied to the criminal law. Secondly, it is also a social reality in the sociology which is asubjective social reality. Emotion is subjective because it is an aspect of mental process. Andemotion also has the character of social reality because emotion is a social reality and it helpsto promote the behavior and it has practical significance in social interaction activity, socialconstruction and the protection of social order. On this basis, the differences and connectionsamong emotion, mood, circumstance and rationality are introduced specifically and clearly.The definition of the above questions forms the theoretical basis of the whole thesis. The second chapter is the relationship between emotion and the conviction andsentencing. In this chapter, the author firstly describes the traditional relationship betweenemotion and the conviction and sentencing. Basing on the fact that we have no faith in theemotion but praise reason highly, some of the traditional ideas falsely divide the convictionand sentencing from emotion such as the worship of extreme law articles, the encouragementof sentencing by computer and the rejection of public opinions. This results in the injustice ofconviction and sentencing, the separation between legal and social effect and thedisagreement of public with the conviction and sentencing In this foundation, the author provethat the conviction and sentencing and emotion does not forget themselves in rivers and lakesfrom the aspects of mechanism, basis, purpose, value and so on. On the one hand, from theview of the mechanism and basis of the conviction and sentencing, I think the process ofconviction and sentencing is not a one-way and closed process taken by the nation to thecriminals. However, it is a process which needs the communication and coordination amongjudges, criminals, victims and the public. In other words, the mechanism of conviction andsentencing requires the integration of emotion. Then I think the basis of conviction is acombination of crime elements which has the qualitative effect and the circumstances of thecrime which has the quantitative effect, while the basis of sentencing is the unification ofsocial harms and personal danger. For the former, whether defining and explaining the crimeelements or the circumstances cannot be divided from the intervention of emotion. For thelatter, emotion is also essential to define social harms and personal danger. On the other hand,from the view of purpose and value of the conviction and sentencing, firstly, I think thefundamental purpose of conviction and sentencing is equal to the purpose of penalty, that is,retribution and prevention. Either retribution or prevention embodies the emotion. Secondly,the author think, the value of conviction and sentencing is equal to the value of criminalpenalty and criminal law which concludes justice, order, freedom and so on. In fact, being thebasic values, justice, order and freedom are never isolated from emotion. Emotion is thecarrier of value and value embodies the warmth of emotion. Further speaking, with the wholeprocess of judge’s conviction and sentencing, the judgment of value has all kinds ofconnections with emotion. Basing on the above two aspects, emotion is needed to achievesuccess in the process of conviction and sentencing, which will also pave the way for thefollowing texThe third chapter is the detailed discussion of emotion in the process of conviction and sentencing. In this chapter, the author will demonstrate from the judge, the actor, the publicand the victim respectively, that is, the influence the four subjects’ emotion have had onconviction respectively. Four sections have been divided in this chapter. The first section isthe judge’s emotion and conviction. In this section, after revealing the theoreticalmisunderstanding, it is pointed out that the judge’s emotional factor influences the convictionthrough the interpretive theory (the interpretation of criminal constitution, the interpretation ofcircumstances) and methodology (convicting according to the crime, sentencing according tothe penalty). To the interpretive theory, either the interpretation to violating legal interests orto proximate cause-effect relationship, in the final analysis, needs the intervention of emotion.For the latter one, in great and disputed cases, the reversed thinking of sentencing accordingto the penalty is also a method of last resort under the support of fair emotion. The secondsection is the actor’s emotion and conviction (be convicted). This section holds that theinfluence the actor’s emotion has on conviction is mainly through the influence which theactor’s has on subjective fault. After pointing out that the emotion factor is at the core of thethree faults (cognition, emotion, will), this section further discusses the embodiment ofemotion factor in concrete faults. It is suggested that the psychological structure of directintention is: direct intention=strongly knowing(or weakly knowing)+hostility+stronglywill; the psychological structure of indirect intention is: indirect intention=weakly knowing+indifference+weakly will; the psychological structure of negligence of overconfidence is:negligence of overconfidence=weakly knowing+despised+weakly will; The psychologicalstructure of negligence of carelessness is: ignorance+negligence+none-will. It paves theway for correctly conviction to make sure the status and function of the actor’s emotion in thestructure of fault. The third section is the public’s emotion and conviction. After proving thatthe influence public’s emotion maybe has on conviction has certain rationality, this sectionsuggests the influence can be achieved by the perfection of regulation and method. Thissection discusses that jury system can be draw lessons from in regulation while in method“feedback effect” can be used with efforts. The fourth section is the victim’s emotion andconviction. This section indicates that the victim’s emotion, from the view of traditionaltheory of criminal law, cannot influence the conviction process which is leaded by the judgeand aimed at actor in general. However, with the rebuilding of the victim’s status, the criminallegal relationship of the two subjects “criminal-----nation” has been broken which provides aturning point to the victim to intervene the conviction process. Among them, the influence which the victim’s emotion has on conviction is criminal reconciliation.The fourth chapter is the detailed discussion of emotion. In this chapter, continuing withthe researching method of the above chapter, the author discusses the influence that emotionhas on the conviction and sentencing process from the view of four subjects. This chapter alsohaves four sections: The first section is the judge’s emotion and measurement of penalty.After analyzing the feasibility and justifiability of intervening the justice’s emotion into themeasurement of penalty process, it is suggests that neither the traditional evaluation stacksentencing nor standardization sentencing which promoted by Supreme Court can erase orexpel the judge’s discretion. So it is also impossible to get rid of the influence of emotion. Tothe judge, the scientific and reasonable sentencing process is the unification of sentencingtechnology and sentencing emotion. The second section is the actor’s emotion and sentencing(being sentenced). From the prospective of emotion offender, this section divides the actor’semotion into social emotion and anti-social emotion. Basing on this classification, this sectionsuggests that, from the basis of sentencing, the criminal behavior of antisocial emotionreflects the actor’s lager subjective malignant and personal danger and it should not be givena lighter or mitigated punishment. But the criminal behavior of social emotion reflects theactor’s less subjective malignant and personal danger and it should be given a lighter ormitigated punishment. The third section is public emotion and sentencing. This sectionsuggests, the mainly reason that the public emotion can affect the sentencing is that the publicemotion can reflect the social harmfulness and the actor’s social danger. In the achieving path,there are types of “the involvement of the third party” and “emotional communication”.Comparatively speaking, the latter is the correct and positive judicial path. The fourth sectionis the emotion of victim and sentencing. In the discussion of this section, the author think,Whether from the basis of punishment or the purpose of punishment, the criminal victim’sbasic emotion should be considered in sentencing. In other words, the influential path of thevictim’s emotion translates into discretionary circumstances of sentencing.The fifth chapter is emotion and the conviction and sentencing under the interaction offour subjects. The above argument is based on the single subject level, separated and staticstudy instead of macro-grasp on the whole. In fact, the process of conviction and sentencing isan interactive, communicative and dynamic process with the participation of multi-parties. Inthis chapter, the author tries to demonstrate that the process of conviction and sentencingagrees with the interaction theory by introducing the theory of social interaction. At the same time, the three-dimensional graph of the relationship among the four subjects in convictionand sentencing is described from the view of the four subjects’ interaction. And it is pointedthat, in the various types of the four subjects’ interaction, the conflict among the actor, thevictim and the public is the basic premise; the force between the judge and the actor is themain means; the cooperation among the judge, the victim and the public and the cooperationbetween the victim and the public is the necessary supplement. After analyzing the varioustypes of interactive relationship, in the interactive course of conviction and sentencing, theforce of subjects’ emotion can be: the emotion of actor is the basis; the emotion of the judge isdominant; the emotion of the public and the victim is the reference and conformation.