Research On Sentencing Concept

To realize the judicial goal of "letting the people perceive fairness and justice in every judicial case" not only needs the judges to realize fairness and justice in the judicial case, but also needs the people to be good at perceive fairness and justice. In terms of criminal cases, the realization of fairness and justice requires to the judges to do appropriate sentencing on cases, besides, the perception fairness and justice requires fairness and justice to be shown in the visible form. Whether for the "realization" or "perception" of fairness and justice, sentencing concept has important value of the rule of law. Sentencing concept links the theory and reality, standard and case, as well as judges and common people.Sentencing concept is the views and opinions on what kind of punishment that criminals should bear. If the scope of the main body of the sentencing concept is expanded to the whole society, it is the generalized understanding of the sentencing concept. In the thesis, based on the concept sentencing of criminal justice as the main research object, sentencing concept in narrow sense is used. Sentencing concept, as views and opinions about penalty discretion in the criminal trial work, embodies judges' value pursuit, basic position and punishment dimension in the process of sentencing, decides the choice of the kinds of punishment and the discretion of degree of punishment. People can have further understanding of sentencing concept from five aspects of characteristics. The body of sentencing concept is judges, determining its the value orientation of fairness and justice; the object of punishment is the defendant and the penalty should not cross the bottom line of personal dignity; the manifestation of criminal penalty discretion is punishment, what kind of punishment, and the executive mode of punishment; the deprivation attribute of penalty determines the punishment of sentencing concept; sentencing concept is the systemization and theorization of notion of sentencing concept and guides the whole process of sentencing. The origin of sentencing concept includes criminal legislation, criminal policy, theory of criminal law and criminal discretion power. Sentencing concept belongs to the category of consciousness and has the property of personal dependency, subjective initiative and practicalness. Sentencing concept, as the thought collection of sentencing, presents the characteristics of legal thinking, conscience thinking, and linear thinking. In the process of sentencing, the main methods of sentencing concept include philosophical speculation, logical deduction and the application of experience. The theoretical value of the sentencing concept is to respond to the call of the sentencing standardization operational layer on theory framework level and improve the sentencing theory research level and practice guidance. In judicial practice, through application of concrete guidance of sentencing concept, judges use all kinds of rules of sentencing to conduct judicial sentencing practice and realize the justice of individual case. Its social value is to act as the medium of expressing judges' sentencing judge process, and launch the benign interaction between the public for the anticipation for judicial justice, guide society to cultivate rational fairness and justice idea, set up the judicial public trust and safeguard judicial authority. (Part one, two and three of Chapter 1)Sentencing concept takes the realization of the appropriate sentencing as the objective orientation and appropriate sentencing has relativity. Sentencing concept aims at appropriate sentencing as the orientation; specifically, it can be divided into the rules orientation and dimension orientation of sentencing and the selection of kinds of punishment. As for the level of sentencing rules, it insists on a legally prescribed punishment for a specified crime, shall not go beyond the sentencing regulated in the laws; it insists on the necessity of criminal penalties, never be inflicted upon punishment unless when necessary, shall not be inflicted upon unnecessary punishment. Besides, it emphasizes the timeliness of punishment, since the timeliness of punishment is favorable for the formation public consciousness of specification and late penalty is a harsh punishment; it reflects the openness of punishment and establishes judicial authority through judicial openness. In terms of dimension orientation of sentencing, appropriate degree reveal the spirit of humanity and reflect the moderation of penalty and sentencing should be proper; degree of modesty aims to the implementation of the mitigation of punishment. When it comes to the selection of kinds of punishment, the humanitarian tendency of penalty system reflect the gentle orientation of sentencing concept; the individualized trend of penalty object reveals that sentencing should follow the principle of bearing responsibility solely for one's own crime; the socialization trend of sentencing punishment way requires the sentencing process to lay emphasis on the defendant prevention, education, and the resocialization of criminals. (Part four of Chapter 1)Retribution and prevention are two perspectives of sentencing concept. The retribution perspective and prevention perspective of sentencing respectively take the retribution theory and prevention theory of punishment as the theoretical basis. Retribution theory has experienced the changes of the three main theories, namely, divine will retribution, moral retribution and legal retribution. From the aspect of retribution origin, vengeance is the cause and effect of punishment; the divine will is the authority of punishment; moral is good and evil of punishment; law is the specification of punishment. The current retribution theory takes legal retribution as the basic position. Retribution is the essence of punishment. The retribution of sentencing concept considers the factual crime, takes a retrospective perspective, takes the crime time as the inspection period, makes comprehensive considerations on the social harm caused by crimes and reflects the subjective malignance; the severe degree of punishment should be adapted. In addition, prevention theory has mainly experienced negative general prevention, special prevention and active general prevention. From the origin of prevention theory, isolation and correction is the temporary solution to individual prevention; improvement and education is the permanent solution to individual prevention; severe punishment and threat is the early experience of general prevention; standard identification is the relocation of general prevention. Prevention is the purpose of punishment. The current prevention theory takes two-sided prevention as the basic position. The prevention of sentencing concept aims at the possible crime and adopts forward-looking perspective; special prevention focuses on examining the doers'personal danger; general prevention focuses on the inspection on the implementation requirements of the public standard conscience (Part one and two of Chapter 2).When retribution perspective or prevention perspective is applied to judge penalty, successive order is necessary. Retribution is the reason why offenders are inflicted upon punishment, that is, the cause of punishment. Retribution perspective identifies the proper limit for punishment. Prevention is the purpose of the doer's punishment, that is. the reason of punishment. Prevention perspective identifies the necessary degree of punishment. The right interpretation of the sentence that "people are means not the purpose" should be that people consider the necessary degree of prevention within the proper limits of retribution. In the process of criminal justice, retribution and prevention perspective of sentencing concept respectively can be used to realize the determination and correction of sentencing standard. To be specific, sentencing standard shall be determined through retribution perspective; the punishment beyond the necessary retribution is unfair. Besides, sentencing standard corrects through prevention perspective; the punishment beyond prevention is unnecessary since it has realized the purpose of penalty. The process of sentencing standard correction with prevention takes the correction of special prevention as the principle and the correction of general prevention as the exception, that is, when the necessity of general prevention is less than special prevention, the correction exception of general prevention should be adopted. The correction of prevention on sentencing standard shall not exceed the proper limit of retribution and usually can not break through the upper limit of legal punishment. (Part three and four of Chapter 2)The emergence of sentencing concept lies in the applicability of various kinds of punishments. The death penalty has the longest history, yet it has the most debatable legitimacy. However, death penalty still has the value of existence in the present Chinese society. The applicability of death penalty must be strictly limited and the fist thing for it is the transformation of the concept. The understanding of "extremely serious crime" is the key and it includes the violation of the extremely serious charges and extremely seriously and hazard behaviors which cause extremely serious and harmful consequences. Accordingly, only when the subjective motives, sin and personal risk conform to the corresponding standard of "very serious crime", can the criminal be inflicted upon the death penalty. Specially, the necessity of prevention should not become the main reason of the death penalty. On the way of penalty execution, the application of the immediate execution of death penalty is limited by expanding preposition applicable scope of death sentence with reprieve. Life imprisonment and long-term imprisonment are also relatively severe punishment and they should become the alternative ways to limit the death penalty in the future; the emphasis on the applicability of life imprisonment is the path choice to more completely abolish death penalty. There is cross infection in short-term penalty of depriving freedom, and it tends to make criminals into more evil abyss. Therefore, the applicability of short-term penalty of depriving freedom should be limited as far as possible. Property-related punishment has the characteristics of openness, is helpful for the resocialization of criminals; in the process of application, the problems such as discretion chaos, and failure of execution should be avoided. Punishment against qualification is effective way to deprive the offenders'ability to commit crime again, so it should get more attention. (Chapter 3)The position of sentencing concept determines its orientation. Justice is the value pursuit of criminal justice and individual case justice is the premise to realize judicial justice. Sentencing concept is the opinions and views of judges to guide sentencing in the process of criminal judicial and should choose the position of individual case justice. In addition, in the position of individual case justice, judges should re-examine the current sentencing concept and realize the present choice of sentencing concept orientation. In the process of criminal trial judge discretion, is difficult to achieve balanced sentencing, since severe punishment sentencing doesn't need superstition and balanced sentencing cannot be compelled. Under the position of individual case justice, gentle punishment, individual and equality should be the deserved orientation of the current sentencing concept. (Chapter 4)In the practice, the penalty discretion of judges will be affected by various interferences. Independent exercise of judicial discretion in accordance with laws is the legal character that people's judges shall have. The insistence of judges' sentencing concept matters last defensive line of maintaining social fairness and justice. Thus, judges should stick to independence of sentencing concept and boldly eliminate offside interference of executive power; judges should stick to the authority of sentencing concept and get rid of the kidnap of social public opinion on the judicial adjudication. Public opinion is often emotional gush and the expression of position. The so-called reasonable opinion is the moral observation based on the fact segments and it should be included in judges'sentencing consideration. Moreover, judges' sentencing concept should be used to lead social justice view, set up the judicial authority and strengthen the positive energy of judicial judgment. Besides, judges should stick to the public benefit of sentencing concept and discard the disturbing of human feeling; judges should stick to the rationality of sentencing concept, restraint the excessive expression of personal feelings, also pay attention to the application of truth, law and feeling when sentencing. Besides, in the process of penalty discretion, judges should blend feelings in truth and law (there is love in the criminal law). (Chapter 5)...