| Article 5 of the Criminal Law stipulates that the punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender. To achieve commensuration between crime, responsibility and penalty, Article 61 of the Criminal Law stipulates that when sentencing a criminal, the punishment shall be given on the basis of the facts, nature and circumstances of the crime, the harm done to the society and the relevant provisions of this law. Despite continuous efforts by theoretical study of criminal law and by the judicial trial, the it is still hard to achieve consistency between the crime and the penalty, since the transformation from crime amount to punishment amount is influenced by many factors, making the “imbalance” normal. The realization of functions of sentencing elements is the basis of balanced sentencing discretion. The crime mentioned in Article 347 is one of the most common crimes, involving such factors in its judicial discretion as: the types, quantity and purity of narcotic drugs, principal criminal, accessorial criminal, preparation of crime, attempted crime, discontinuation of crime, accomplished crime, recidivist, recommitted crime, confession and meritorious performance. The declared punishment of this crime is much heavier than violent fatal crimes. Then, we may ask whether the factors in the crime sentencing has been properly addressed and evaluated.To find answers to the questions, the author made an empirical study of the work experience in the criminal court of a higher people's court and is based on 600 narcotic drugs crime cases from 2008 to 2013.This dissertation consists of six parts.Part I introduces the background and basis of the research. This part provides a historical review of punishment configuration of narcotic drugs crime given by the authority of 200 years. On this basis, in accordance with the application of Article 347 in the judicial practice, we find five problems in the judicial discretion of the crime. First, the criminal policy has too much effect on judicial discretion of the crime. Second, incorrect understanding of the sentencing elements makes it easier for the judges to sentence to death the drug criminals than the criminals in violent crimes. Third, the starting point for sentencing discretion of the crime is rather high, so criminals are often sentenced to long fixed-term imprisonment or even life imprisonment, which is deductive to the re-socialization of the criminals. Fourth, the role of the quantity of narcotic drugs is often exaggerated during the judicial discretion of the crime. Finally, in the case of absent principal criminal, the accessorial criminals often share some of the punishment on the principal criminal.Part II gives the comments of the value basis and the policy support of the sentencing factors. Serving as the bridge between crime amount and punishment amount, sentencing elements carries the criminal law into the goal of balance between the crime and the penalty. To this end, this part will try to limit and consummate the functions of sentencing elements from three dimensions, which are cleaving to the position of balance, abiding by the criminal policy of combining leniency and severity and careful use of death penalty. From the aspects of retribution of penalty, prevention of punishment and integral penalty, the first dimension analyzes the values that sentencing elements must adhere to. After investigating the long-term effect of the campaign-style governance and zero-tolerance policy on the prevention of drug crime and examining the relation between criminal policy and sentencing discretion, the author found that applying severe punishment to drug crime received unfavorable outputs,which not only seriously undermined the authority of the judiciary, but also violated the fundamental rights of the criminal. Thus, sentencing must adhere to the bottom line of legally-prescribed penalty, guided by the criminal policy of combining leniency and severity, to achieve rational regression of the judicial discretion of the crime. The third dimension discusses the meaning of “committed extremely serious crime” as prescribed in Article 48 of the criminal law, and discusses whether the crime in Article 347 can be considered as one of the “most serious crimes” accordingly. In other words, the third dimension discusses whether death punishment should be imposed on criminals who commit the crime in Article 347 or under which circumstances should death punishment be applied.Part III discusses the role of behavior objects in judicial discretion. As the legally-prescribed sentencing elements, the types and quantity of narcotic drugs play a decisive role in the judicial discretion for criminals involved in smuggling, trafficking, transporting and making narcotic drugs. This part first discusses the relationship between the type, quantity, purity of narcotic drugs and the crime, and the author found the problems in sentencing practice through empirical study. First, although the type, quantity and purity of narcotic drugs have important value in judicial discretion, but the inclination of “amount property” in judicial practice greatly restrict the function of other factors in judicial discretion. Second, the purity of the narcotic drugs is of the same importance as the type and quantity of the narcotic drugs, but is often deliberately ignored in judicial process and only valued in death punishment cases, which would inevitably lead to the injustice in sentencing the criminals involved in death punishment cases. Thus the following suggestions are put forward. First, judges should understand the limitations of the quantity of narcotic drugs during judicial discretion. Second, the criminal's awareness of the type and quantity of the narcotic drugs should determine how these elements should be valued in the judicial discretion of cases of smuggling, trafficking, transporting and manufacturing of narcotic drugs. So accurate judgment of the criminal's awareness of the narcotic drugs plays an important part in achieving balanced judicial discretion.Part IV focuses on labour division and judicial discretion. Different actors play different roles in a joint crime, usually with a huge difference. Therefore, to identify the accurate role played by different actors in the joint crime is of great significance in criminal sentencing. The empirical investigation in this part has the following findings. First, the joint crime has evolved to its advanced stage and the real leader of the crime is not likely or never possible to be captured. Second, the drug smugglers are the major sufferers of the penalty. Third, although just as the accessorial criminals in a joint crime, the drug smugglers are usually sentenced the major penalty. On the basis of the cause analysis, the author puts forward the following suggestions. First, a change should be made from the distinction between the principal and accessorial criminals to the distinction of four levels according to the different contributions made by the different actors in the joint crime. The one with the biggest contribution should be sentenced as the first-level criminal, while the second-, third-, and fourth-level criminals are named accessorial and sentenced accordingly. Second, the proper definitions of the legal property of drug smuggling in different joint crimes are necessary in the reasonable sentencing of the different actors with different labor divisions. The complexity of drug smuggling determines its overlapping with the relationship between the principal criminal and accessorial criminal. An accurate identification of the nature of different drug transporting is crucial in a proper sentencing discretion of these criminals.Part V discusses the forms of criminal acts and judicial discretion. There are four kinds of forms in intentional crime, namely, attempted crime, preparation of crime, discontinuation of crime and accomplished crime. The criminal amount of unfinished crime is essentially different from that of the accomplished crime. This part first discusses the establishment of standards of the unfinished form of crime and the relation between informant investigation and the unfinished crime. The empirical research has the following findings. First, the extensive use of undercover investigators and technical measures of investigation would help law enforcement agencies get the information of the crime at its earlier stage and may decide to stop it at any proper time. Second, in judicial practice, the unfinished nature of the crime is not recognized, which means that all criminals are assigned the same amount of punishment as on the criminals of accomplished crime. On the basis of the cause analysis, solutions are presented as follows. Judges should have a deep understanding of the gap of criminal amount between unfinished crime and accomplished crime, adhere to the principle of balance between the crime and the penalty, and determine the unfinished form of crime in conformity with legal provisions.Part VI discusses criminal record and attitude after committing a crime, which plays an important role in judicial discretion, especially in death punishment cases. This part first discusses the principle of heavier punishment for recidivist and criminals of recommitted crime and lighter punishment for criminal of confession and meritorious performance. Empirical investigations have the following findings. First, the principle of heavier punishment for the recidivist and criminals of recommitted crime is greatly deviated in judicial practice, resulting in the increase of death punishment cases. Second, confession and meritorious performance in cases of smuggling, trafficking, transporting and manufacturing of narcotic drugs are the factors that would lead to lighter penalty, but the actual application of them and their legislative goals are poles apart. The suggested measures are as follows. First, recidivist and criminals of recommitted crime are among the elements leading to heavier penalty, but they should not be directly linked to death penalty. Second, judges should correctly understand and evaluate the functions of confession, make the utmost of the system of confession and meritorious performance to eliminate the abuse of “heavier” legal penalty. |
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