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Research On The Construction Of Sentencing Methods Under Sentencing

Posted on:2017-08-14Degree:DoctorType:Dissertation
Country:ChinaCandidate:D LuoFull Text:PDF
GTID:1316330512953806Subject:Criminal Law
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Sentencing method problem is our country in recent years, the criminal judicial practice and theoretical research hotspot and difficulty. However, to build up a scientific and reasonable method of sentencing, for the justice of sentencing balance, promote sentencing, is extremely important.From the sentencing standardization reform in our country and its important crux problem, the existing method of sentencing is not well the study of the theory of the system, which in turn bring many difficult to solve practical difficulties. Throughout both the theoretical research on sentencing method, mainly is aims at to explore the theory of "method", and for the main body of "method" was attached namely sentencing ontology problem is rare, it is bound to bring the study of the theory of the sentencing method can't really provide theoretical guidance for sentencing method to explore the shackles. Covering the issue of sentencing method makes the most difficult in the theory and practice of today's sentencing, the most complex "big problem", the key sticking point is here. This article tries to view and logical starting point of sentencing method issues to explore. The full paper is divided into five parts as follows:The first part "introduction" part, mainly introduced in this paper, we study the background and significance, and research the basic train of thought, position and method of key points out the current sentencing method to construct faces some difficulties and problems, including the discretion and quantitative penalty of dialectical unification, choose mastery of the technology to sentencing, sentencing experience summarized general problems and so on. In addition, the methodology of sentencing also, sentencing technology such as sentencing sentencing thinking and methods the approximate concept of carding and appropriate boundary points, for behind the concept of sentencing method prepared for further defined.The second part of "sentencing method to construct prevue", in addition to the basic concept of sentencing method is defined, and the current sentencing methods at home and abroad were reviewed and the necessary combing and comparison. In the past, people awareness of the concept of sentencing method divided, often with the sentencing process confusion or sentence patterns, the resulting on the judicial practice and theoretical research.Actually, method of sentencing is not the same as sentencing procedures, and should not beconfused with the sentence pattern, but in a criminal trial is familiar with and master by the judge, on the basis of accurate conviction, with proper discretion the defendant criminal liability for the direct target of sentencing rules, sentencing procedures, punishment and sentencing thinking combined. In addition, by comparing sentencing practice outside the main countries under the rule of law, can be found that the realization of the sentencing justice does not necessarily need to institutional reform, emphasize sentencing rules and sentencing standards, unreasonably restrict the discretion of the judge would damage the substantive justice of sentencing, Attaches great importance to the sentencing, on the other hand, the interaction between theory and practice of sentencing, to strengthen sentencing experience and flexible use of speculative logic, is the justice of sentencing the right direction. Therefore,the construction of sentencing method using must be returned to the sentencing ontology,attaches great importance to the sentencing experience, sentencing process and the basic role of sentencing reasoning, looking for sentencing consistency and sentencing individualized equilibrium, make rules, reasonable and legal theory to fusion, will be the development direction of the reform of sentencing method.The third part "of sentencing method to construct ontology perspective", sentencing method cannot leave "punishment" and the research work of discussion from a distance, the so-called "vertical and horizontal not fangyuan, plus ca change", only to find out what is meant by sentencing to make not disobey the sentencing sentencing method is constructed and applied the basic principles and laws, but in the past, people understanding of sentencing ontology is not thorough, the resulting in the construction of sentencing method and using the lack of reliable theoretical guidance, thus faces many problems. In fact, sentencing ontology is the entity of the sentencing refers to the rules will be applicable to the general object of abstract legal standards applicable to the specific case, specific, and rise to the rational concrete(legal truth and relative truth) of judicial activities. Among them, the sentencing process is the foundation of sentencing ontology, because the sentencing process shows the sentencing whole, integrated the sentencing goal, effectively promoted the sentencing justice;And sentencing experience is sentencing ontology kernel, because it is not only a sentencing an important source of knowledge, but also guarantees the smooth exercise of right of discretion; Sentencing reasoning constitutes the mainstay of sentencing ontology, this is because it gives sentencing legal and rational result of reality. In light of sentencing the perspective of ontology, the past a lot of sentencing method cannot achieve sentencing justicereal drawbacks are found, such as traditional experience of the criminal law, the key to failure is lack of sentencing process of modern science and technology is the main reason why amount of elimination of the criminal law rejection sentencing experience, and unified norms of criminal law problem lies in the "rules of heavy and light process". So, to build and use of sentencing method shall return to the sentencing ontology, on the one hand, the construction of sentencing method need to conform to the basic principle of criminal law and requirements,such as merger, the position of criminal law, the penalty purpose of double prevention,criminal science systems theory, etc. Sentencing method to build, on the other hand, need to meet the needs of judicial practice, such as design idea, conform to the rules of judicial habit,program understanding to master, actual operation flexibility to move, and so on.The fourth part "sentencing method to construct the" noumenon ""," sentencing ontology"put forward definitely to sentencing method research opens a new window, its rich connotation of ontology in this paper, the outline of sentencing method ought to be" the outline of it in. Sentencing method, however, is the essence of a tool for judicial practice, the sentencing ontology "metaphysical" beyond the grasp of the practice of the "physical" is not the same as the sentencing method to explore. Therefore, construction of sentencing method also need to look at how sentencing specific development under the guidance of ontology.Of sentencing to the understanding of the internal mechanism of ontology, through above sentencing method of building should revolves around three aspects: first, relying on the sentencing process to grasp the method of sentencing of key nodes, and sets up the basic framework of sentencing method; Second, the method of creation, based on the experience of sentencing sentencing system text, and with the sentencing experience perfect sentencing method technology; Third, relying on sentencing reasoning method to improve sentencing public recognition, and reinforcing the inherent logic of sentencing method.The fifth part "sentencing sentencing method under the ontology fragment builds", defined the direction of sentencing method to construct a does not fully answer all the questions sentencing method, need is the judicial practice can provide specific operation steps,programming and the sentencing of standard methods. Sentencing ontology, however, tells us that in the past the overall integration of system design is neither accords with the nature of law of punishment, also can't meet the demand of the practice of sentencing; On the contrary,according to the piecewise build sentencing sentencing process method, and to play to the advantages of sentencing experience and sentencing reasoning is the development direction ofsentencing reform. Sentencing method of so-called "block", is not sentencing for cutting or splitting method itself, but according to the different stages of sentencing process and formulate corresponding sentencing method, so that the sentencing method presents the forms of expression of "paragraph" type, each method of sentencing "paragraph" usually contains a variety of sentencing techniques or methods, the verbosity depending on the stage of punishment on the main task or goal; The segmented build sentencing method's advantage is can accomplish the eclecticism of sentencing technology, eclecticism, and in appropriate and responsibly and trade-offs.In general, the sentencing process can be divided into three stages,namely the initiatory stage, sentencing sentencing development stage and the sentencing stage,sentencing method according to difference of every stage sentencing tasks for different building. Sentencing is beginning to specific legal punishment and place off the discretion of punishment, this phase of sentencing methods more applied to deduce the logic and dialectical logic, more depend on the legal norms and sentencing system; Sentencing stage of development is the starting point for sentencing discretion, this phase of sentencing methods lay particular stress on modern technology means, namely through the establishment of sentencing information system modal theory, and by the reference of similar case within the system to determine the specific sentencing starting point; Is to the discretion of punishment sentencing in-depth phase, this phase of sentencing method is processing a variety of circumstances, the technical method is more comprehensive, almost covers all the technologies of the sentencing method.
Keywords/Search Tags:Method of sentencing, Sentencing ontology, Sentencing process, Sentencing experience, Sentencing reasoning, Segmented build
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