Alynasis On Criminal Victims’ Participation In Procedures Of Measurement Of Penalty

With the rapid development of the society and the enhancement of the populace’sconsciousness of government by law, the common people have higher requirementsand expectation to the court’s measurement of penalty. And those who suffer fromcrime directly have an much more urgent demand to either the accurate conviction orimpartial measurement of penalty. And they not only request for participating in court,but also expect to declare themselves on the measurement of penalty. Many caseshappened in recent years show the victims’ concern to the measurement of penalty,such as the cases of Ma Jiajue, Liu Yong in Shen Yang, BMW accident in Ha’ Erbin,Sun Weiming’ drunk driving in Chen Du, Yao Jiaxing and so on. Some victims’appeals or petitions also result from dissatisfaction to the court’s measurement ofpenalty. From Oct.1,2010, China has been launching the reform of standardmeasurement of penalty. Two normative documents, The People’s Court SentencingGuidelines (trial) and About the Opinions on Some Issues of Sentencing Procedures(trial), are put into trail. However, that reform pays the most attention to theprocuratorial organ and the defendants, and the victims are rarely referred. It is a hotand difficult spot in theoretical and practical circle to ensure that the victimsparticipate the measurement of penalty.Victims’ participation in the measurement of penalty is the legal action that thevictims voice their opinions during the trial, and affect and supervise the judges’sentencing. This participation has the intrinsic value such as to protect their dignity, torelief their emotion to revenge and ask for compensation, to express their interestappeal and so on. What’ s more, it has the extrinsic function of upholding the justice,of supervision and restraint, of placation and prevention, and to achieve the judge’sfurther approving. The victims have experienced some historical roles such as thepenalty decider, the unrelated onlooker, and the penalty influencers in themeasurement of penalty. It is a kind of tendency to ensure that the victims make aneffect on the measurement of penalty. Influenced by some factors like the litigationmode, the judicial system and the legal tradition, foreign countries have differentsituations about the victims’ participation in the the measurement of penalty. However,under the insistence of due procedure, victims in the socialist countries have a deeperand more comprehensive involvement in the measurement of penalty. It is worth to bereferenced such as to construct independent sentencing procedures, entrust the victims with the right to state their injury and s on.On victim participation in sentencing in China is now at a stage of controversialtheory and legislative perfection. It is because the collision between theory andpractice that highlights of victim participation in sentencing in China such as thenarrow scope of participation, obstructed channel of participation, imperfect programof participation, alienated result of participation and the inactive attitude of victimsthemselves, and so on. And these are the results of the influence of traditional legalthoughts, the criminal legal relationship of binary constraints, the deficiency ofcriterion for sentencing, closed sentencing process, the deficiency of right to ensuretheir participation in the measurement of penalty and the victim’s own constraints. Inorder to achieve the victim participation in measurement of penalty, it is necessary tooptimize the criminal ecology, establish the litigant concept based on the dominanttraditional retributive justice and supplementary restorative judicial concept, set updouble triangle structure of improving victims ’ sentencing position, properly handlethe relationship between the defendants and the victims, prosecutors and judges inparticipation, construct separate judicial procedure of penalty proceedings, improvethe participation and awareness-raising of victim in sentencing.The procedures of the victims’ participation in the measurement of penaltyinclude the mechanisms of voicing opinions, arguing and reasoning. The threemechanisms are necessary and complement with each other. The victims’ opinionsprove the harmfulness of a crime and the blame on the criminal. The judges shouldconsider the victims’ character, attitude, impetus of interest seriously under theprinciple of relatively balanced penalty. And the legislation needs to perfect themechanism of the victims’ reference in the measurement of penalty so as to restrict thejudge’s jurisdiction. In order to ensure that the victims can participate themeasurement of penalty successfully, the victims need to be protected in their security,their right to be informed and the attorneyship of litigation. And the legal and socialassistance to the victims should be improved. In the case of the aggression upon thevictims’ right of participation in the measurement of penalty, the victims can beassisted by the mechanism of applying for the protest, the mechanism of limitedappeals, the mechanism of retrial appeals and so on.