Research On The Normative Application Of Discretionary Circumstances Of Sentencing

As some scholars have said, any criminal case may not have legally prescribed circumstances of sentencing, but never may not have the discretionary circumstancesof sentencing not only helps to realize the purpose of penalty, it is necessary for implementing the criminal justice and the individualization of penalty. For a long time, given the "discretionary" feature, theorists tend to believe that it cannot or should not be standardized, it will lose the value and meaning of its existence, so the study of the specification of the discretionary circumstances of sentencing plot has not been done deeply.Some scholars even questioned the existence of "legitimacy" of it, as it violates the basic principles of statutory crime of the criminal law. In December2013, the Supreme People’s Court issued the "Notice on the implementation of the standardization of sentencing "and the "About the common crime sentencing guidelines" and decided that from January1,2014the formal implementation of the standardization of sentencing. Among them, the normative application of discretionary circumstances of sentencing has become one of the important content, and the discretionary circumstances of sentencing was formally incorporated into the track of norm apply ing. Guided by " The people’s court sentencing guidiance (for Trial Implementation)"(hereinafter referred to as " the guidance of sentencing") and "The people’s court sentencing opinion (for Trial Implementation)"(hereinafter referred to as the "opinions on the sentencing procedure") issued by the Supreme People’s Court in2010, this paper analysis and demonstrates the concept, the legal basis, the existing problems and the influence ofdiscretionary circumstances of sentencing.And on the basis of classifying commondiscretionary circumstances of sentencing in judicial practice, the paper proposes thestandards and the requirements of normative application of discretionarycircumstances of sentencing from substantive and procedural aspects.Finally,the paperputs forward some suggestions on the way of specification in the hope of benefitingthe properly regulation by the legislature and the correct application by the judicialdepartments. This paper is divided into two parts: introduction and the text part.According to the contents of the layout, the text part is divided into the following sixparts.The first chapter is the overview of the discretionary circumstances ofsentencing norms applicable, is divided into three sections. In view of the importantstatus and function of sentencing discretion in sentencing, the specification is not onlyan important part of the standardization of sentencing reform, is the key link for therealization of judicial justice.The first section introduces the background andsignificance of the sentencing standardization reform. Combing the various stages ofthe exploration and practice, and on this basis, it puts forward, sentencingstandardization can not do without specification of the application of discretionarycircumstances of sentencing. Discretionary circumstances of sentencing normsapplicable for target localization judge to exercise discretion to provide basis anddirection, its significance lies in the visible way to achieve judicial justice, inhibit theinterference of artificial factors on the sentencing activities, a system to achieve thelegal effect and social effect. The second section defines the concept andcharacteristics of the discretionary circumstances of sentencing. Starting from thedispute of the concept of discretionary circumstances of sentencing, according to theanalysis on the concept of "plot"and"sentencing", combined with the generalacademic and "the guidance of sentencing" relevant provisions, to be "thediscretionary circumstances of sentencing" is defined as: All the circumstances of thecase affect the sentencing results, identified by the judge to be at the discretion ofsentencing, outside criminal constitution facts and legal circumstances. And on thisbasis, summarized the discretionary circumstances of sentencing is illegal qualitative,enrich basic characteristic, specific and variability. The third section is about foreigndiscretionary circumstances of sentencing standard introduction and inspiration. Bycomparison of Anglo American law system and continental law countries and regions norms applicable aspects of development and experience in the discretionarycircumstances of sentencing, the discretionary circumstances of sentencing criterionused with discretion, the development trend of the world system of sentencing judgesshould be respected and the necessary limit point.The second chapter is the theoretical basis and application of discretionarycircumstances of sentencing, is divided into three sections. Because the law has notspecified the content and the influence of discretionary circumstances of sentencing,and the theory is lack of unified understanding, in judicial practice, problemsincluding judge not applicable, excessive application and selective applicationfrequently appear, and have become an important cause of the sentencing injustice.Theoretically explain and solve these problems is very important to the normativeapplication of discretionary sentencing. The first section analyzes and clarifies thetheoretical basis of the discretionary circumstances of sentencing. It is mainly to solvethe theory problem of the existence and application of discretionary circumstances ofsentencing, to point out it can meet the need of penalty goal and restorative justicetheory, is not only the requirement of principle of suiting punishment to crime and theresult of the combination of principles and flexibility, but also the basis of therealization of penalty individualizing. The second section discusses the influence ofthe discretionary circumstances of sentencing. Starting from the "discretionary" natureof discretionary circumstances of sentencing, it puts forward that with the heavier,lighter or mitigated punishment influence, the discretionary circumstances ofsentencing cannot exempted from punishment, also there is no "should be" plot. Thethird section analyzes the main problems existing in the application of discretionarycircumstances of sentencing. Currently, some of the discretionary circumstances ofsentencing have become a key factor in sentencing, such as the return of restitution,compensation for economic losses, etc. Their sentencing influence even exceeds thestatutory mitigating circumstances such as surrender or confession. But problems suchas lack of standard, randomness, selective application and so on are always hinderingthe correct application of it.The third chapter is about sorting out common discretionary circumstances ofsentencing in judicial practice, is divided into three sections. In this part, the authorsorts the relevant criminal law and the relevant criminal judicial explanation andnormative documents issued by the Supreme People’s Court from1997when the new criminal law enacted， analyze and demonstration every common discretionarycircumstances of sentencing from the perspective of legislation, judicial practice andtheory basis, so as to conclude the application regulation of it. In order to facilitate thedemonstration, it is teased by the time sequence as the standard, and is divided intopre-crime discretionary circumstances of sentencing, in-the-crime discretionarycircumstances of sentencing, and after-the-crime discretionary circumstances ofsentencing. The first section analyses the common pre-crime discretionarycircumstances of sentencing. The section demonstrates the necessity and the standardof defendant consistent performance, first crime, casual offence, criminal record andnotorious record as the pre-crime discretionary circumstances of sentencing. Thesecond section analyses the common in-the-crime discretionary circumstances ofsentencing. The section demonstrates the necessity and the standard of betweenrelative crime, victim’s fault, during the period of major natural disasters, specialcrime means, special harmful consequences, against vulnerable people and theanticipated possibility as the in-the-crime discretionary circumstances of sentencing.The third section analyses the common after-the-crime discretionary circumstancesof sentencing. The section demonstrates the necessity and the standard of voluntaryconfession in court, surrender ill-gotten gains, restitution, compensation for economiclosses, victim forgiveness and criminal loss reduction as the after-the-crimediscretionary circumstances of sentencing.The fourth chapter is the standard of discretionary circumstances of sentencing,is divided into four sections. On the basis of the third chapter and the relatedregulations of "the guidiance of sentencing”, this chapter summarizes theidentification principles and standards of discretionary circumstances of sentencing,on the basis of which it excludes the abuse cases. The first section summarizes theshortcomings of the discretion sentencing plot related regulations of "the guidance ofsentencing”. By using the enumeration method,"the guidance of sentencing" does notclarify the standard; on the contrary, it limits the judge’s discretion, makes relativediscretion into mechanical behavior. The second section proposed the principles ofdiscretionary circumstances of sentencing, which are comprehensive consideration ofthe principle, the principle of prohibiting repeatable evaluation and the principle ofindividual. Comprehensive consideration of the principle is to consider the fact that allbut the facts and legal sentencing circumstances constitute a crime outside, may have an effect on sentencing. Principles of prohibiting repeatable evaluation refers to thecase of the same facts can not be repeated evaluation, in order to avoid excessiveaggravated or mitigated penalty to defendants. The principle of individualizationmeans should be specific cases specifically identified, at the same time to reflect thespecial nature of specific case is different from a case. The third section concludesthe standard of discretionary circumstances of sentencing. It includes in line with thesocial reason and morality, conforming to the basis of penalty, typicalness, andprovability. And in addition to that, according to the standard judgment extractedoutside, judges should also consider the type of crime, property crime, facts and legalcircumstance for sentencing factors. The fourth section is to exclude some commonabuse of discretionary circumstances of sentencing. By the guidiance of thosestandards, some abuse of discretionary circumstances of sentencing are excluded, forexample, the situation of social public order, the defendant pleaded not guilty, and thecustody period of defendant before the sentence,.The fifth chapter is the procedural norms of the discretionary circumstances ofsentencing, is divided into two sections. The reason of the chaos of the identificationand application, except for its complication nature and lack of regulations in criminallaw, the unclear of the evidence requirements, the burden of proof and standard ofproof and imperfect of the procedure norms also are the main reasons assignable. Thefirst section discusses the evidence and proof of the discretionary circumstances ofsentencing. The text puts forward the evidence specification, including prohibit thejudges take the initiative to collect, the collection of comprehensive and legitimacy,must undergo cross examination. To clarify the burden of proof, the principle ofprosecution to prove in the conviction phase is "who advocates, who proof", bothsides and the victim must bear the relevant proof obligations. In terms of the standardof proof, the strict proof principle should be used on the plot which is against thedefendant, and the preponderance of the evidence principle should be used on the plotwhich is advantageous to the defendant. The second section proposes the suggestionson the procedure specification. Those suggestions are strengthening procuratorialsentencing proposal, deepening the reasoning, judgment set up a neutral socialinvestigation agency.The sixth chapter is the way of standardization of discretionary circumstancesof sentencing, is divided into four sections. This chapter points out that, in the shortterm, the discretionary circumstances of sentencing standardization has the effect to get instant results from the judicial perspective, But in the long run, the discretionarycircumstances of sentencing standardization is more important from a systemperspective, excessive exercise can not only effectively guard the discretion of thejudge, but also conducive to improve judicial efficiency and realize the unity ofjustice. The first section clears the criminal status of discretionary circumstances ofsentencing. Aiming at the disadvantages of the Criminal law Article61which is thelegal basis provisions of discretionary circumstances of sentencing, the text suggeststo addict "the range of discretionary circumstances of sentencing" and "prohibitingrepeatable evaluation" two paragraph after Article61, so as to clarify the criminal lawstatus and the account of discretionary circumstances of sentencing. The secondsection puts forward the legalization of discretionary circumstances of sentencing.Combined with the successful practice of legalization, it sums up the necessaryconditions of the discretionary circumstances of sentencing. The third section putsforward that the judicial explanation and normative legal documents of discretionarycircumstances of sentencing, can not only overcome the shortcomings of the criminallaw lag, but also accumulated experience for discretionary circumstances ofsentencing. The fourth section emphasizes the case guidance system is of greatsignificance for the discretionary circumstances of sentencing standardization, andputs forward some suggestions to perfect the case guidance system. For example,strict case selection criteria, strengthening case binding, construct the scientific casehierarchy system.