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The Basic Problem Of China's Sentencing Standardization

Posted on:2016-11-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:S C LiuFull Text:PDF
GTID:1316330461453226Subject:Criminal Law
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The sentencing imbalance is a worldwide problem and sentencing bias phenomenon is not just exist in China. For a long time, both criminal judicial practice department and the criminal scholars home and abroad are trying to solve the imbalance of sentencing problem. So far no one has found an effective solution. The sentencing project has therefore become "Goethe Bach conjecture" in criminal theory. To further regulate the discretion to impose penalties, carry out the criminal policy of combining leniency with rigidity, improve sentencing openness, realize the balance of sentencing, and maintain judicial justice, the Supreme People's Court formulated the Guiding Opinions on sentencing by the People's Courts (for Trial Implementation) and the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly formulated the Opinions on Several Issues concerning the Regulation of sentencing Procedures (for Trial Implementation). These two provisions were in all-round trial implementation from October 1,2010. On december 23,2013, the Supreme People's Court issued Guiding Opinions of the Supreme People's Court on Sentencing for Common Crimes. From 1 January 2014, such provision is in all-round implementation. Each superior courts also formulated the detailed rules for the implementation of the province. Although theoretical study on sentencing and sentencing reform in China are prosperous, behind the scenes of prosperity often always hidden problems. This paper analyzes the theory and practice of sentencing reform home and abroad, in order to find directions of sentencing reform and provide theoretical support. Including the introduction, this paper is divided into six parts.The first part is the introduction of this article, mainly discusses the history and current situation of sentencing reform abroad, sentencing legislation and judicial status and basic Theory before China's sentencing standardization reform. The history of the Supreme Court sentencing reform also has been discussed. Through the analysis of sentencing reform evolution and the present situation about American, England and Welsh, New South Wales of Australia, German, Japan, South Korean and Taiwan area discretion of punishment analysis introduction may know that different countries or regions by reason of different environmental conditions and characteristics of the legal system and the criminal justice system for sentencing reform concerns the perspective, the development of different sentencing patterns, embarked on a path different sentencing reform. However, there is no country or region of the sentencing reforms were perfect. The analysis of sentencing legislation and judicial status and basic theory before China's sentencing standardization reform show, the sentencing reform for 10 years makes China's sentencing justice has undergone a qualitative leap. From the overall point of view, sentencing standardization reforms ended the history of arbitrary sentencing and entered the era of quantitative, scientific and fair sentencing. From the overall point of view, the sentencing criminal judge sentencing in heap of history reform end, created a quantitative, scientific, fair sentencing sentencing reform era, but there are still many problems even more serious problem, needs the further consummation. But there are still many problems even serious problem, needs the further improved and perfect.The second part discusses the basic principle and basis of sentencing of China. The principle of compatibility of crime, responsibility and punishment is the basic principle of sentencing which has been expressly stipulated in China's Penal Code. The principle of compatibility of crime, responsibility and punishment is also known as the principle of balance of crime, responsibility and punishmen, which contains the culpability principle and principle of individualization of punishment. Here referred to "balance" actually as balanced to guilt and individualized punishment. However, the judicial practice often break the principle of the principle of compatibility of crime, responsibility and punishment, sush as many factors unrelated to the responsibilities and prevention are also included in the sentencing consideration, just considering the degree of guilt and ignore the need for prevention, prevention needs to break through the upper limit of guilt. In this paper, the principle of balance of interests has been proposed as another basic principle of sentencing. Through the analysis of article 61 of the Penal code, we know that the sentencing under the terms of the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of this Law are mixed together.The provisions cited in the same terms as the basis of sentencing, the rationality is doubtful. Even if want to emphasize the influence of "the nature of the crime" on the sentencing, also not be to different levels of concepts are mixed together cited provisions. In ad-dition, in order to clarify the meaning of sentencing, it is necessary at the time of leg-islation increased sentencing consideration.The third part go into in-depth discussion on the benchmark penalty. Through analysis of relevant theories on benchmark penalty and sentencing benchmarks, we know that benchmark penalty and sentencing benchmarks are two different concepts, sentencing methods to benchmark penalty as the core of the establishment of the Supreme People's court sentencing guidelines is scientific. Benchmark penalty is a sum of the starting point for sentencing and penalty increases. In order to better clarify the process of determining the benchmark penalty, the starting point for sentencing, classification of the criminal facts, basic crime constitution fact, penalty increase fact, evaluation of the penalty increase fact have been discussed in detail. But the benchmark penalty prescribed by the Supreme People's court to determine the method still exist deficiencies, such as determining the criminal facts and adjusta-ble reference distinguishing criteria in the evaluation of the facts of crime, how to co-ordinate with guilt as basis and consider the need for crime prevention, based on the relationship between the remaining criminal constituting facts evaluation, quantity of crime and non-the number of prisoners, the evaluation may be exempted from crimi-nal punishment and other issues, it needs to be perfected, thus this paper gives rele-vant improvement methods.The fourth part discusses the punishment of quantification. Quantization of sentencing is the penalty to the dimension, is of great value for further understanding and correct application of criminal punishment. The key is to find the quantization quantization scale based on the consideration of various kinds of punishment can be quantified. The prison is China's most widely used as a kind of punishment, the prison sentence unit (month) as a quantitative index of the penalty, to discuss whether the penalty can be quantified. Through the analysis of the nature, characteristics, the applicable conditions and the inherent relationship between the set term of imprisonment, at present our country can be quantified penalty for control, criminal detention, fixed-term imprisonment; can not be quantified the penalty of death, life imprisonment, confiscation of property, deprivation of political rights, deportation of criminal penalty; under normal circumstances can not be quantified, but under the condition of possibility, which can be quantified in a fine condition. In the quantization process, must correctly handle the relationship between rationality and legitimacy of the two. Due to the applicable conditions, the nature of punishment is not exactly the same, "criminal law" itself to the vast majority of punishment has not provided the clear quantitative basis, such as the single penalty, we more is to probe into the punishment from the angle of rational quantification problem. From the perspective of the whole penalty system and the penalty system in China is a not fully quantified punishment system, but only a few specific quantification of the penalty.The fifth part discusses the circumstances of sentencing and the quantization evalua-tion.Circumstances of sentencing and circumstances of adjudgment have qualitative difference must be strictly distinguished. The application of circumstances of sentencing must strictly abide by the principles of prohibiting repeatable evaluation, is also prohibited in the same value on the level of the same facts for repeated use, that is to be avoided in the sentencing and the basic constitution of crime fact, sentencing and other effects of crime constitution of crime between the facts, circumstances of sentencing itself is formed between the repeated evaluation. Circumstances of sentencing has a heavier and lighter punishment or mitigated punishment or be exempted from punishment, four features, four functions should be strictly distinguish between applicable should not be confused. Quantification of circumstances of sentencing must be based on the qualitative evaluation.The Supreme People's court "sentencing guidelines" (2013) for sentencing to benchmark penalty based, distinguish common circumstances of sentencing and sentencing and unusual, given the common circumstances of sentencing with regulation proportion. In addition, according to the circumstances of sentencing types and quantities of different using different quantization methods so that judges can to determine the quantitative results ultimately according to the specific case, conducive to the realization of the criminal individualization. However, the sentence method still exist problems that need to be improved. Although it adopts the combination of quantitative and qualitative methods, is unable to realize the circumstances of sentencing complete quantification.The adjustment proportional region is wide and arbitrary sentencing remains inevitable. The range of common circumstances of sentencing is too narrow, uncommon circumstances of sentencing are still to be arbitrarily evaluated. Benchmark penalty as a quantitative benchmark sentencing Is not appropriate.The provision is too simple when there are multiple circumstances of sentencing, etc.The sixth part mainly discusses the establishment problem of pronounced penalty. In this part, the paper distinguishes the pronounced penalty, statutory sentence and execution of punishment. Comprehensive reviews and comments have been made on the basis of the related theory in criminal law theory and judicial practice. Guiding Opinions of the Supreme People's Court on Sentencing for Common Crimes (2013) prescribes the Judge shuld make adjustments to the benchmark penalty according to the circumstances of sentencing, and legally determining the pronounced penalty by fully considering the situation of the whole case. Methods for determining the pronounced penalty are diffrerent when the result of adjustments to the benchmark penaltyare diffrerent. such as the result of adjustments to the benchmark penalty made according to the circumstances of sentencing falls under the range of statutory penalty, the result of adjustments to the benchmark penalty made according to the circumstances of sentencing is lighter than the minimum statutory penalty, the result of adjustments to the benchmark penalty made according to the circumstances of sentencing is heavier than the maximum statutory penalty. Although it has certain rationality, but still exist deficiencies. The scope of application is limited to 15 kinds of crimes, such as traffic offenders, wilful injury.Due to proclaim the establishment of criminal sentencing and punishment against established benchmarks to quantify based on sentencing quantitative benchmarking baseline penalty is determined by the judge, which will certainly affect the elaboration of declared criminal, and have an impact on the announcement of a final penalty. For some cases, the declaration of the rules is too simple, or even no provision is made for.Such as the rule for multiple circumstances of sentencing and combined punishment for several offenses. Aiming at these problems, this paper puts forward the perfect plan related.
Keywords/Search Tags:Sentencing standardization, The basic principles of sentencing, Sentencing basis, Starting point for sentencing, Benchmark penalty, Punishment ofquantification, circumstances of sentencing, pronounced penalty, Empirical research
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