The Systematic Construction Of Sentencing Rules

The Sentencing rules refers to the standards and doctrines of sentencing applied by the judicial branch.In China the sentencing rules is combined of various rules rather than some single structure.Specifically speaking,at present China's sentencing rules consists of general rules of sentencing(sentencing principle),specific sentencing rules(Circumstances;Legal punishment;Penalty system such as Recidivism,Surrender,Meritorious service;The number of crimes and other systems;Sentencing rules stipulated by the official interpretation of the criminal law)and guidance of sentencing rules(Guiding Opinions of the Supreme People's Court and guiding cases issued by the Supreme People's Court).The main problems to be solved in the sentencing guidelines are the types of punishment,the establishment of the scope of the legal punishment,the conditions for the adjustment of the penalty(the circumstances of sentencing)and the benchmark of sentencing,etc.The systematization of sentencing guidelines refers to the systemized whole bunch of sentencing rules,which is constructed in a much higher perspective.By doing so is good for the organic integration between the various components of sentencing and good for the localization and decentralization of different sentencing levels,so as to use the systematic thinking method to solve the problem of lack of coordination between the various components within the system of sentencing guidelines.Just like building houses the daily life,what needed is not only raw materials such as steel,cement,concrete and others,but also the blue print for the building,besides construction technology.In the construction of the sentencing guidelines,what needed is not only the harmonious relationship between out the composition and the components of sentencing,but also a valid guiding methodology,and the author argues that the guiding methodology should be the "fairness be the priority,then limiting the sentencing power ".basing on such guiding philosophy,all the sentencing rules should be in a reasonable,orderly and coordinated relationship,which is supported by sufficient sentencing technique.The system of sentencing guidelines is not a plane structure,but a three-dimensional,multi-level structure.The author argues that the ideal sentencing guidelines should be constructed into two level.The level one should include the ideology of sentencing guidelines,which is fairness be the priority,then limiting the sentencing power;the structural guaranties of sentencing,which is about the reasonable punishment and clear sentencing benchmark;the technical support for the auxiliary system of sentencing,which includes the hardware(the management of information and data of sentencing)and software(the categories of method of thinking).The level two mainly concerns the basic principle of criminal law(the principle of legality,the principle of propriety of punishment);General rules of sentencing(sentencing principle);specific sentencing rules(circumstances;legal punishment;Penalty system such as Recidivism,Surrender,Meritorious service;sentencing rules in the official interpretation of the criminal law)and guiding sentencing rules(official sentencing guidelines and guiding cases).It is obvious that each of these rules is only part of the level two,rather than all of it.Along with the development of civilization of criminal jurisprudence,the historical evolution of the development of sentencing guidelines experienced a unique developing process,in which the first single all the legal punishments are fixed and definite,then with the time going,the punishment is less fixed and definite,finally,in recent years,many countries in the world added sentencing guidelines to the existed legal punishment and cases(in China which will be the "guiding case").That is to say,the sentencing rules in the world are no longer a single structure,but gradually developed into a more systematical one.This historical evolution itself is also a strong description of the importance and urgent needs for the systematization of the sentencing guidelines.The modern significance of the systematization of the sentencing guidelines is embodied as in the construction of system to clarify the domination of the basic principle of legality,and the the principle of propriety of punishment in the level two of the whole bunch of the sentencing system,which will be the guiding principle for other components of sentencing in this level.In other words,the construction of the system of sentencing rules is helpful to the implementation of the basic principles of criminal law,such as the principle of a legally prescribed punishment for a specified crime and the balance of crime and punishment.The construction of the system of sentencing guidelines in China will encounter the following problems: Firstly,there is discrepancy among the ideology of the construction of establishing the system of sentencing guidelines.Secondly,there are several problems should be solved in time as to the concrete sentencing rules.Thirdly,there is no sufficient coordination between the various components of sentencing system.Fourthly,there is no enough technical support for the construction of sentencing rules.In view of the four principle problems mentioned above,the countermeasures should be taken as follows:Firstly,setting up the "fairness be the priority,then limiting the sentencing power " as the guiding methodology for sentencing.Secondly,improving the reasonableness of the allocation of punishment and at the same time clarifying the sentencing benchmark.Thirdly,resolving the problem of the lack of coordination between the various components within the system of sentencing rules.The author argues that systematic method of thinking should be used to clear the sentencing rules within the various components of the system level and rationalize the relationship between the various components.Fourthly,strengthening the technical support for the construction of auxiliary system of sentencing guidelines.The author argues the technique should include the hardware and the software,the former mainly about the improvement of the modern information management of the sentencing data,the latter mainly about the categorical method of thinking to make up the deficiency of the legal concept abstract.The jurisprudential innovation in this dissertation lies in that in the context of the present sentencing rules of all countries in the world has developed from single structure into the systematical sentencing,the research on the construction of system of sentencing guidelines in China has its own theoretical and practical value: firstly,the theoretical value of the research is to fill the blanket and holes in related domestic research,as of today,there is still not so many scholars ever paid much attention to this topic.secondly,from the perspective of legal practice,the historical evolvement of sentencing from single structure to a more comprehensive structure already indicate the need for such researching.The author hopes by conducting such a preliminary discussion so as to enrich the related theory and lay the foundation for the following research of this theory.