The Life Of The Sentencing Lies In Experience

The problem of sentencing fairness is not only a profound legal philosophy,but also a judicial issue at a realistic level.The construction of any sentencing fairness pathway is based on the solution of the "meta-problem" of "what is sentencing" as the theoretical basis,and the latter dominates the operation mechanism and realistic picture of the former.The domestic consensus about the concept that sentencing is a "criminal justice activity" only pays attention to the surface of the issues instead of revealing the "special contradiction" that why sentencing is sentencing and its inherent logic different from conviction.It is difficult to guarantee that the pathway of the sentencing justice will not "go astray." This paper uses the deconstruction of sentencing thinking as the logical starting point,trying to reveal that the sentencing differs from the inherent characteristics of conviction,and then clarify the process of sentencing thinking,so as to build a normative sentencing frame based on the substantive justice.The purpose of this paper is to reveal the proposition of the characteristics of sentencing thinking,"the life of the sentencing is based on the experience".It generally follows the evolutionary thinking "putting forward the hypothesis-demonstrating hypothesis-testing practice-optimizing the system",so that this paper is about to permeate the essence of this grand narrative proposition into the practice of deepening and perfecting the standard sentencing reform in our country.his paper is devided into four chapters besides introduction.The first chapter is the general theory of "the life of sentencing lies in experience", which is the logic origin.It is aimed at clarifying the concept of the sentencing experience and illuminating the basic implication of "the life of sentencing lies in the experience",so as to form a conjecture and hypothesis about "the value decision of the sentencing thinking in terms of the content of the empirical content".The "experience" in this context is a concept,knowledge,and skill that is extracted and applied by the judge in the course of the sentencing process to influence the judgment and penalty.And the "life" herein is a vivid description of the status and function for the experience in sentencing thinking,which means the empowerment of the life to sentencing by the experience.In other words,experience is not only the necessary condition for the execution of sentencing,but also ensures that sentencing results adapts to the development of social situations,so that it will not be framed by the rigid shackles of the statute law but to achieve the power of sentencing substantive justice.Compared with the logic,the experience in sentencing has overwhelming advantages.n essence,the proposition reveals the characteristics of creative thinking about sentencing,condenses the core of the sentencing theory,locates the status of thinking program in the sentencing logic,and scientifically shows that the sentencing reform should respect and rationally regulate the judges discretion.In the realistic situation of advancing the strategy of ruling the country according to the law,the proposition of "the life of sentencing lies in experience" constitutes the basic thinking of the judge in the course of the penalty,and constitutes the judicial approach to implement the policy of "temper justice with mercy",and thus constitutes the principle of ensuring the independence of the trial substantive assurance.The second chapter is the theoretical foundation of "the life of sentencing lies in experience",which aims at laying the theoretical foundation herein from such three levels as philosophy,culture,and law,so as to realize the leap from "hypothesis" to "truth".In epistemology,the sentencing is based on the facts of the case to determine the facts as a prerequisite,but its noumenon judges the value of criminal responsibility,and it is the experience to judge such kind of value.In the dialectics,the sentencing mission is to reveal the criminal responsibility of the case of personality,and the judges need to evaluate and reflect the special contradiction of criminal responsibility individually on the basis of the specific case,and it is the experience to lead the judges to think about it.In logic,the thinking process of sentencing has experienced the transition from formal logic to dialectical logic,and the formal logic embodied in abstract thinking provides the basic frame of thinking for sentencing.However,its limited thinking pattern determines that it can't grasp the nature of things as a whole from the level of movement and system.It's necessary to use the dialectical logic that reflected the dialectical logic of objective dialectics,while the experience is the true record of the dialectical logic.Human values are the unity of the conflict and the consensus,which constitutes the intuition of the judge and embodied as the experience.The essence of the modern legal culture lies in the idea of "the governance of common sense,logical sense,and common law" instead of " the governance of rules",while the former is of course not only the systematic understanding of the law,but also the guarantee that judicial is not going to the people's opposite concept,which reflected as sentencing experience held by the judges.The law reflects the public's respect for legal reason and the expectation that the judicial decision should meet the social purpose,and the conclusions of the In terms of nature,the judicial power is a public power that embodies the characteristics of judgments.As the sentencing process of judging the degree of criminal responsibility,the judge needs to determine the extent of the criminal responsibility for specific cases based on legal norms,and the experience constitutes a link between the norms and the facts.Studying from the essence,sentencing is the discretionary activities for the criminal responsibility,while the experience constitutes a measure of sentencing discretion that is properly exercised by the judge.As the evaluation index of sentencing,sentencing legalization and rationality are interdependence,mutual integration,and internal unity,thus forming a substantive legal concept,but the latter must be achieved with the aid of sentencing experience.In the type,sentencing justice is the justice of individualized correction,the basic characteristics is the "taking the needs",such kind of ideas about sentencing justice needs to use sentencing experience,so that it can be recognized by the judge.The third chapter is the realistic study of "the life of sentencing lies in the 'experience",which aims at examining the judicial situation of "the life of sentencing lies in the experience".The realistic situation in contemporary China therein is studied individually from such five dimensions as the recognization of the basic concept of sentencing,the understanding of sentencing principles,the choice of sentencing methods,the application of sentencing circumstances and the status of sentencing theories.In terms of the concept of cognition,the nature of sentencing reflected in "the sentencing guidance" sways between "quantification of punishment" and "discretion of punishment".At the same time of trying keeping the judge's discretionary power,"the opinions" are to achieve the intention of " cutting down"that with the name of "normalization" through the pattern of adjusting the proportion.For the"normative sentencing" path,"opinions" try to achieve the goal of "similar case,similar penalty" through a stylized "three-step" approach.In view of the sentencing fairness,the"opinions" have the tendency to balance the "equal sentencing" with "consistent judgments to similar cases",which distorts the spirit of the former.As for the understanding of the principle of sentencing,there is a common tendency in the judicial practice of understanding the basic principles of sentencing in an one-sided and formalistic manner,which offers a rational argue in favor of the tendency of anti-experience in sentencing.As for the selection of the sentencing method,the traditional estimation-based sentencing method lacks a clear thinking process since the method ignores the reasonable function of logic,and it is difficult to make sure that prejudice,which disguises itself as intuition,can be hardly prevented from affecting,in the name of experience,the sentencing thinking of judges and undermining sentencing impartiality.In terms of the "three-step" sentencing method designed in "sentencing guidance",the "name" and "reality" of the text show two distinct faces:the stylized approach that is characterized in the name of "qualitative sentencing orientation" and in the reality of"quantitative sentencing orientation" excludes the leading role of experience.In the case of the application of the sentencing circumstances,the incomplete extraction preferences for the situation of "valuing legalization,but neglecting discretionary" and the evaluation method of"quantitative" squeeze the experience of the role of space.In terms of the state of sentencing reasoning,the alienation of sentencing reasoning under the "three-step" sentencing pattern of the sentencing normalization and the emptiness of sentencing reasoning under the traditional"heap-type" blocked the expression of sentencing experience.The fourth chapter regulates the sentencing approach under "the life of sentencing lies in experience",which aims at constructing the normative sentencing approach in the context of China in accordance with the implication of "the life of sentencing lies in the experience".It is thought that the approach of "normative sentencing"should be constructed from such five dimensions as concept,principle,method,plot and reason.At first,the sentencing concept should be reformed in accordance with this proposition,which will guide the correction of the thought of "normative sentencing",turning from the pursuit of stylized one-sided unity of the sentencing to the recognization of the reasonable differences of individualized sentencing,from the belief of " The quantitative analysis of precision " transformed into the"comprehensive fuzzy evaluation "which is based on qualitative,from the mandatory constraint specification to the reference flexible guidance,which will indicates the return of the concept of "dealing with sentencing discretion seriously".The judge's sentencing role is oriented from the passive text-abiding person to the experienced active creator and user,the judge's sentencing function is restored from the passive law-abiding to the initiative,and the judge's power checks and balances of the idea will be transferred from the entity limit to the program control,which will indicate the cognitive rational return of the sentencing fairness,the standard of fairness will be converted from the persuit of the "sentencing balance" to the the pursuit of "balance of crime and punishment",and in the mission of fairness,the social management functions that regarding "stability"as the center will be turned into the social governance function that regarding "Conviction" as the huSecondly,the principle of sentencing should be clarified according to the proposition.the proposition calls for the systematic and substantive understanding of the basic principles of sentencing,and expects the general principles of sentencing can be understood in the fit of the nature and rules of the sentencing.Once again,the sentencing methods should be designed in the light of this proposition.The system should be designed,on the basis of the punishment of collection,the punishment of responsibility,and the punishment of declaration in the process of sentencing,section by section.Then the plot should be optimized in accordance with the proposition.In order to optimize the extraction rules of the plot,the power of choosing judges and completely extracting the sentencing circumstances in the case should be restored.For the optimization of the plot evaluation rules,the accumulation of force of competition and cooperation sentencing plot and the counteraction of force of the conflict sentencing plot should be dealt with carefully on the basis of carrying out the "Fuzzy assignment" for the individual plot.FinalIy,reasoning mechanism should be constructed according to the proposition:the content of the sentencing principle is the interpretation of the penalty argument;the essential position of the sentencing principle is the expression of the sentencing experience;the field of the sentencing principle is the judicial dialogue;the value goal of the sentencing principle is the referee's agreement.The operation of the sentencing principle should be carried out step by step in accordance with the steps of the sentencing process,so that the experience of the material as a sentencing thought can draw the penalty conclusion through the formal logic of the argument program in an orderly manner to achieve the unity of the process of sentencing thinking and reasoning.