Of Penalties

Intersection of legal punishment kinds is a phenomenon that exists between thelegal punishments or between the kinds of punishments and penalties enforcementwithin the same grade of legal punishments: they must have severity of distinctions,but these differences are not so obvious like a ladder-type punishment phenomenonthat can be told at one glance. Intersection of legal punishment kinds is a commonphenomenon. The severity of one punishment hidden in the back of the intersectiondifficile is a universal problem can not be avoided. Judges discretion within the scopeof legal penalties, they need to reflect the severity of the punished deeds, yet judgesdo not know the severity of each punishment is bound to more or less mix withrandomness and blindness. This article is committed to crack the Ingmar of “theintersection of legal punishment kinds”, so as to provide the possible rigorouscredential basis to judges. It should be emphasized that the above-mentioned“intersection of legal punishment kinds” phenomenon, not only exist in all kinds ofpunishment, but also exists in the penalty enforcement system. Since “intersection oflegal punishment kinds” is an objective universal phenomenon, and the judge mustconsider the penalty to be faced with “intersection” problems, also take into account the judge must make a choice in the intersection, these events show that research onthe intersection of the phenomenon, not only has the theoretical value to fill the gaps,but also has great significance of being judicial practice guidance. This article takesthe “intersection of legal punishment kinds” as a breakthrough in the penaltycomparison, find the difference between punishment and trying to determine theimpact of these differences in the severity of the penalty factors, and exemplified indetail and analyze differences in the severity of these penalties as comprehensive aspossible. This is how the basic starting point of this article coming out.Frankly, by far judges seems did not have access to adequate and reasonablebasis, even might be with varying degrees of blindness and randomness, when theyfaced with choices of punishments. Usually, judges are aware of the severity ofpunishments varies, but do not know where the differences of severity presents, orhow the severity of punishments differs. The author believes that the judge in makingthe penalty, just have some "feelings" of the difference of punishment is far notenough. Moreover, when judges are in face of some certain punishment intersectiondifficile, even a slightest "feeling" said above would not been found. If the penaltiesare really not comparable, then it is impossible for the legislators to make the judgesselect a given punishment in the specific provisions of criminal law. Since thelegislators intend to set up such a punishment intersection difficile provision, thesepenalties are deemed to have some commonalities, even the severity of differencesthat may exist between those two punishments is very small. At least in the differencebetween the two punishments should also be summarized which is appropriatepenalties to the offenders in a sentence. Since the judge will have to make a choice inthe “intersection of legal punishment kinds”, the task of this article is to provide morecomprehensive and objective basis to the judges, the results of this research on the“intersection of legal punishment kinds”, providing reference to the judges in order toavoid arbitrary on decisions of what kind of sentence they make. This is my primarygoal of this research on the severity of indicators of penalties. Of course, my ultimategoal is to accurately measures the severity of each penalty, which is a very ambitiousproposition that the author alone can not be accomplished. Therefore, this article is committed to the pursuit of such a primary goal: first I find out the “intersection oflegal punishment kinds” from the criminal statutory provisions, and do a typed formcollate. Based on this, I make rough analysis the differences between the two or morekinds of punishment kinds. Finally, I turned to looking at these differences that mainlyreflect the severity of indicators of penalties.The focus of this study is "penalty". This article turns to do estimates about the"quantity" of the severity of penalties, not for criminals "sentencing". This article isdivided into five aspects to demonstrate. The first part of the article gives thedefinition of "penalties" and explains the concept of the severity of indicators ofpenalties. Need for discussion in this article called "punishment" is made in aparticular context broad concept, including not only as specified in the penal system,all kinds of punishment, but also the execution of the penalty methods, such assurveillance, detention, imprisonment, life imprisonment, the death penalty, finepenalty, deprivation of political rights, confiscation of property, probation, reprieveand etc.. This so-called “penalty system” combined all these “punishment” listedabove. The context meaning of “penalty severity reading” is a term with a specificmeaning. It is a reading of the severity of each penalty."Severity" is a vague, roughconcept. Only by listing the factors that impact the severity of the penalty, andinvestigated these factors closely will interpret the severity of each penalty moreintuitive and more accurate. The severity of penalties is not the same. Penalties linedby the severity different from light to heavy together, constitute a progressive line,thus is a complete system of penalties.The second part to the fourth part focuses on the “intersection of legalpunishment kinds”. Since every sentence has a corresponding “penalty severityreading”, then this will be determined by variety of factors to measure the severity,which are hidden in the difference between the penalties. In any kinds of “intersectionpenalties”, there are bound to contain numerous differences, such as differences inindividualization of punishment, the penalty function of differences in thetransformation, the severity difference is one of them. But this article singled outoption to compare the severity factors, while the other differences factors will be excluded. In other words, the focus of this study always falls in the internal severitydifferences among “intersection of legal punishment kinds”. This is the topic of thisarticle: heavy and light penalty.The object of study is the severity of penalties, but the author has to cover thescope of the study to be able to dig out all of the differences among penalties. Thereason is that the severity differences and other differences are not distinctly separate.In addition to the penalty provisions differences, the same kind of punishment will bediffer in severity factors in result of the different ways of implementation, thusaffecting the severity of penalties. Take probation and death sentence with a two-yearreprieve for example, the amount of “penalty severity reading” in addition to theconstituent elements of criminal penalties itself constraints, there are other kinds ofcriminal penalties on criminals do not have: the deterrent factors. These factors alsoshould be measured at the time of doing research. Therefore, we have to amend theforegoing statements. We distinguished the severity differences with other differencesfactors previously, in fact, one or several independent severity factors does not exist,severity factors inherent in all the difference, the more or less. The research approachis: first, to dig out all the differences as far as possible; Second, to dig out the severityof the factors these differences in as far as possible; Third, to do fine, quantitativetrade-offs to these severity factors of penalties.In the process of comparing the severity of penalties, fuzzy math theory andsocial attitudes towards penalties provides empirical and theoretical evidence-basedinformation on quantitative description of the interaction between verification andinspection. Although this paper is to compare the penalties for quantitative research,but so-called “quantitative” is not necessarily accurate to specific values. Sometimeswe even try to avoid give accurate values. Because I realized that I do not yet have thecapabilities to give precise values or formulas amount of “penalty severity reading”.In the absence of the systematic, adequate, repeated calculations with the theories ofsociology, statistics and etc., comprehensive demonstration prior to any object in thesocial sciences to give precise figures are not withstand questioning assignment. Themost the author can do is to give an approximate reading to one “penalty severity” factor relative to a given interval, so that the research of the severity of indicators ofpenalties will go through qualitative to quantitative propulsion.Penalties can be divided into principal penalty and supplementary penaltyaccording to the criminal law. Punishments by type can be divided into Freiheitsstrafe,life punishment, property punishment and qualifications punishment. The author firstselected principal penalty to compare, then selected the same type of penalties tocompare, i.e. Freiheitsstrafe as detention and imprisonment, property punishment asfine and confiscation. The biggest breakthrough in this article is to createcomparability between different types of penalties, such as comparison of probationand prison punishment, both are two different implementation modalities ofimprisonment, one belonging to a sentence of imprisonment, the other belonging to acommunity correction objects. One year in prison and three years imprisonment andthree years probation, which judgment is less severe? I also hope that through thisresearch will help solve the problem. As for the comparison of death sentence withreprieve and life imprisonment is between different types of penalties, one being afree penalty, another being a life punishment. However, after the expiry of thereprieve, there will not be an actually death sentence.This second chapter is a comparison study on detention and imprisonmentpenalties. The author focused on four major differences of detention andimprisonment through the method of induction: the prison premises, forced labor,incentive and punishment treatment, likelihood of recidivism. The author visitsseveral sites of detention center, and did a comparative law stipulates research, foundthat: the special provisions in detention such as "near execution"," home authority ",are basically not implemented; while the forced labor factor, such as labor conditions,labor jobs, working hours and the possibility of recidivism in detention, is indeedconstitute mitigation than imprisonment. In addition, the author also combined thetreatment of prisoners and the prison’s dormitory conditions, with inspection andcomparison, and gives the final draw conclusions that detention is less severe thanimprisonment. This conclusion is a little against the proportion of fixed-termimprisonment contrary according to the section44in criminal law. And bring a variety of considerations; the author obtained a preliminary estimate the “penaltyseverity reading” amount of detention should be slightly less than the penalty ofimprisonment.The third chapter is a comparison study on suspended death penalty and lifeimprisonment. Originally the author should compare death penalty and lifeimprisonment, but the value of life is far greater than freedom, so from this point ofview the severity of the death penalty is certainly far heavier than life imprisonment.This is obvious, without argument. But death penalty has two different ways ofimplementation, In addition to immediate implementation of the death penalty, thereis death with a two-year reprieve. It is uncertain that whether death will actually beexecuted. Then exactly, it is very ambiguous the death penalty with immediateexecution is heavier than a lifetime imprisonment, but the death sentence with areprieve on the coordinate position of “penalty system” is ambiguous. If not a legalpunishment species, reprieve undeniably holds a unique penalty severity amount. Anddeath penalty with reprieve is bounded in between the immediate implementation ofthe death penalty and the lifetime imprisonment. But which of the two is closer toreprove’s “penalty severity reading” amount, it will need to take some efforts todemonstrate. The author divided the differentiating factors of the death penalty withreprieve and life imprisonment into two categories: one category is only a reprievecontents, and life imprisonment doesn’t according to the provisions, such as lifeimprisonment has no provisions commuted to limitation, nor to set reprieve period;second category is reprieve and life imprisonment has both provisions but the contentis different, such as the foregoing provisions of commutation and significantmeritorious services. After investigation and evaluation, after a death sentence withreprieve in commuted to life imprisonment, the provisions of execution, significantmeritorious service, recidivists and tight serious violent crime penalty, reprieve period,all these four aspects of differs with the original life imprisonment during executing,also the difference is limited. After detailed study, the author found that exclude thedeterrent factors of reprieve period, the actual prison term differs of different kinds ofdeath penalty with reprieve has a gap of up to10years or longer, while the death penalty as a whole only has a gap of2years between the life imprisonment. Instead ofsaying" Criminal Law Amendment (Eight)" widening the imprisonment disparitybetween death penalty and life imprisonment, it is rather to say that the Amendmentwidened the prison term gap between different types of the death penalty withreprieve.The fourth chapter is a comparison study on fine and confiscation of propertypenalty. First, the author focused on the application form of the both penalty, andfound: confiscation of property is to be applied together with the principal penalty,and always go together with the heavier principal penalty, while fine can be imposedalong and as well as with principal penalty. Punished with fines along generallyappear in the case of less serious punishment, leave the judge to choose from amaximum of five years in prison. So compared to fines, confiscation of propertygenerally only apply in the cases of more serious crimes. But the phenomenon itselfcan not prove fine is less severe than confiscation penalty as an additional punishment.Secondly, the author focused on the object and unit of measure of property. Fromliteral meaning, it seems that fine is to ask the criminal to pay a certain amount ofmoney, while forfeiture of property can be targeted either in money or propertyobjects. But in fact when executed, if a criminal is sentenced to confiscation ofproperty is to be executed by forfeiture the real property or intellectual property rightsetc., these property rights or real property shall be converted into money throughauction or other process before turned to the state treasury. For criminals who weresentenced to a fine, they can also got the intellectual property, stock equity, and etc.into money by auction and pay these money into treasury. Therefore, there is nodifference between the two penalties’ execution object. In determining the propertyamount, the criminal law did not form a specified limit to the fine, considering theactual affordability of criminals it is more difficult to accomplish when it comes to afine cost sky-high price. It also contributed the main reason of the low implementationrate of fines and confiscation of property. Third, the implementation of both penaltieswas compared. Fines implementation period is infinitely long, even up to thecriminal’s rest life. And even the confiscation of all property also keeps criminals and their necessary dependents living expenses extent. Therefore, in many cases, fines areheavier than the confiscation of property. Of course, this conclusion is not entirelytrue when in the case of very wealthy criminals, fines or still may be lighter thanconfiscation of property.Chapter V is a comparison study on surveillance and deprivation of politicalrights. This is a study between principal penalty and additional punishment, and"intersection of punishment kinds" between Freiheitsstrafe and qualification penalty.After research, the author found that deprivation of political rights used as a singlepunishment at the scope is much larger than an additional scope thereof. It’s no lessthan the proportion in the scope of surveillance and detention. Deprivation ofpolitical rights used alone is no different with other principal punishments, and themaximum can choose to apply with can be up to five years in prison. Although thegeneral provisions of the criminal law form deprivation of political rights anadditional punishment, but the specific provisions of sub-rule in the application isexactly as principal penalty, which offers the deprivation of political rights andsurveillance a comparable platform. The author analysis further in-depth,surveillance is lack of punitive factors. After estimation and analysis, some parts ofthe implementation of the surveillance consist with deprivation of political rights. Injudicial practice, surveillance and deprivation of political rights mainly perform bycommunity corrections agencies-even if both the executive bodies on legislativerequirements are slightly different. Surveillance and deprivation of political rightstake rarely any rights from criminals. Therefore, I believe that deprivation ofpolitical rights lighter than the surveillance, but the difference of the two is verylimited.The sixth chapter is a comparison study on penalties with and without probation.According to the nature and characteristics of probation, a probation sentence wouldinclude two aspects: First, the burden that probation itself will bring about to thecriminals; second, the deterrent factor that comes from the likelihood of execution ofthe original sentence. The amount of severity of probation is a combination of the twofactors mentioned above. By comparison, the author found probation is rather than surveillance or even less. While the deterrence factor of probation is always a virtualpsychological repression, not the actual denial of the rights, the quantity of thedeterrence factor of probation is always less than the deprivation of actual rights.Therefore, in order to meet the requirement of Proportionality, it is necessary to bringmore pressure to the criminals in the execution. Yet it is not seen any differencesbetween probation and surveillance.Research on the “intersection phenomenon” is a huge systematic project, is onelengthy research process from qualitative to quantitative study. Facing the“intersection of legal punishment kinds” phenomenon, I have neither the law basis,nor legal theory guidance. Therefore, what I have done in this research is agroundbreaking, filling in the blanks of relevant theory. I first comb and dig outvaluable content from lines of the code and provisions. the carefully combing theprovisions of the Penal Code, and accordingly to set up a framework for thisresearch. Then diverge, my research tentacles extended to other categories of law,such as criminal procedure, administrative law, prison law; Also I triedmulti-disciplinary blends of research methods, such as empirical methods, casestudies and inductive method, interviews of judges and criminals method.This article is the first step in a long-term goal and is the minimum target of thisambitious project. Of course, the study of the penalty severity will not only exist inthe “intersection of legal punishment kinds”. The ultimate goal of this study is to linkup all the existing penalties and measure the severity of the penalties precisely. Yet Ican not independently complete such a major complex issue. Therefore, this articlecan only take “intersection of legal punishment kinds” as a breakthrough, and take theexistence of “intersection of legal punishment kinds” as the basic premise of thisstudy. For these penalties that doesn’t have “intersections" will not be discussed inthis research paper.