Research On The Judicial Application Of Mitigating Circumstances

The Fourth Plenary Session of the 18 th CPC Central Committee clearly stated that good law is ahead of good governance.From this,it can be seen that in order to achieve effective governance of society,it is necessary to have a good law that matches the south.With the rapid development of the Reform and Opening up Policy over the past 30 years,the achievements of China's legal system construction have become more remarkable,and the effectiveness of the rule of law has become more remarkable.However,this does not mean that our country's legislation and the judiciary are perfect.At least on the problem of the mitigating circumstances,China has long had problems not only in the theory than but also in its application,and there are also big problems in judicial practice.For the terms that are highly generalized in legislation,such as “below statutory punishment”,“next sentencing range” and “special circumstances” as stipulated in Article 63 of the Criminal Law,if they cannot be clarified in theory,they will cause problems in judicial practice.This article is gradually developed in line with the "what","why" and "how to do" ideas.The full text comprehensively uses speculative,comparative,and empirical research methods to discuss the application of mitigating circumstances.In addition to the Introduction and Conclusion parts,the full text is divided into five chapters.Chapter 1 Overview of the Judicial Application of Mitigating Circumstances.Even if the mitigating circumstances are stipulated in the legislation,how to understand the relevant concepts,such as “mitigating punishment”,“plot”,and “mitigating circumstances”,has always been a big controversy.This chapter is mainly for the specific issues of “the basic category of mitigating circumstances”,“the basic types and application of mitigating circumstances” and “the function of mitigating circumstances”.It is not difficult to understand the mitigation of punishment.However,in the criminal law,how to define the mitigation punishment,whether in the Anglo-American legal system countries or the civil law countries and even China.Comparing the definitions of mitigating punishments between scholars and Chinese scholars,there are similarities between the two.For example,the definitions are mainly based on the criminal legislation of each country.However,there are also large differences,such as the scope of the provisions for mitigating punishment outside the domain is significantly larger than the scope of mitigation punishment in China.That is to say,the mitigation penalties prescribed outside the domain include the two types of mitigation and mitigation in the criminal law of our country.China's mitigation punishment has two characteristics,” first,from the perspective of nature,mitigating punishment is a lenient punishment provided by the criminal law;secondly,from the perspective of magnitude,mitigating punishment is lower than the statutory minimum penalty penalty”.This paper considers that the so-called plot refers to all subjective and objective facts that reflect the degree of social harmfulness of the behavior and the personal danger of the perpetrator and thus determine the severity of the penalty.Therefore,the so-called "mitigating circumstances" refers to the legal or discretion of the people's courts to reflect the degree of social harm of the behavior and the personal danger of the perpetrator and to the criminals to be sentenced below the statutory penalty.Subjective and objective reasons.For the mitigating circumstances,this paper mainly grasps from the two aspects of “reducing the essential attributes of the punishment plot” and “reducing the characteristics of the punishment plot”.Different mitigation circumstances and other plots also reflect the characteristics of “statutory,objective,connected,diverse,and valued”.Because the mitigation scenarios set by countries vary,there are many different generalizations about the types of mitigating circumstances.Specifically,according to the nature of the criminal law norms and the scope of application of the statutory circumstances,the mitigating circumstances and the mitigating circumstances prescribed by the general rules may be stipulated in the general rules.According to whether the statutory circumstances necessarily affect the sentencing results,the mitigating circumstances can be divided into the types of mitigating circumstances and the mitigating circumstances.According to the circumstances of the mitigation of the circumstances,the mitigating circumstances can be divided into statutory mitigating circumstances and discretionary mitigating circumstances.Obviously,there are different application relationships depending on the type.In terms of the application of the general mitigating circumstances and the mitigating circumstances,it is necessary to first examine whether there are special provisions for mitigating circumstances in the criminal law,and if there are special provisions in the criminal law,whether or not the general provisions of the criminal law are examined.There are also other mitigating circumstances,that is to say,there is no exclusionary relationship between the criminal law and the application of the general principles of criminal law.In terms of the applicable relationship between the statutory mitigating circumstances and the discretionary mitigating circumstances,they are in a complementary relationship in a static state.In the dynamic relationship,the two are contradictory.That is to say,if in one case the case is a statutory mitigating circumstances,then the possibility of considering it as a discretionary penalty should be excluded and it can only be treated in accordance with the statutory mitigating circumstances.If the episode is not a statutory mitigating circumstance,then considering whether the episode is a discretionary circumstance,it means that the episode is a discretionary mitigating circumstance and it no longer becomes a statutory mitigating circumstance.The reason why the mitigating circumstances are stipulated in the criminal law is largely determined by its function.In the context of this article,the mitigating circumstances have “adjustment,guidance,and control functions”.The second chapter is to reduce the punishment of the plot of the theoretical basis of judicial application.According to the type of mitigating circumstances,it can be said that the judiciary has different attitudes towards the judicial application of mitigating circumstances.For example,in the case of mitigating circumstances,the judiciary must consider it in the process of handling the case,and it is a consideration with obvious tendency to punish the circumstances.However,no matter what circumstances,the adaptation of mitigating punishments necessarily involves the application of the corresponding mitigating circumstances in the criminal law and applying them in the judiciary.In particular,there are ambiguities in the identification of mitigating circumstances,and in the strict sense,there is indeed a suspicion of the principle of decriminating the crime.In fact,first of all,the mitigation of punishment is indispensable as a system generally regulated or recognized by national legislation or the judiciary.Secondly,there are also many needs for applying the mitigating circumstances in the judiciary.There are at least four aspects of the judicial application.First,the inherent requirements for the realization of the purpose of punishment.The initiation of punishment not only needs to follow the basic boundaries,but also fundamentally solves the legitimacy of the punishment.For a long time,there have been major controversies about the reasons for launching penalties and for what purposes can be achieved after the penalties are imposed.In particular,the debate between the old scholars and the new scholars has made the problem confusing.The theoretical basis for the application of the mitigating circumstances prescribed by the Criminal Law is obviously inseparable from the requirements of the purpose of punishment.The interpretation of the purpose of punishment is no longer limited to one aspect.First,punishment is a punitive measure imposed on the offender in a way that deprives the suffering,and therefore has a retributive side.Secondly,in addition to retribution,penalties focus on the sin of the past and have the purpose of prevention.Whether it is to achieve general prevention or special prevention of criminal law,it is necessary to adapt to the mitigating circumstances.Second,the inevitable orientation of the individualization of punishment.In the theory of criminal law,the emergence and development of individualization of punishment is also concerned by various scholars.Although the theory has gone through hundreds of years from germination to development,it has also evolved continuously in the development of penalty theory.process.Then,from the theoretical viewpoint of the individualization of the existing penalties,it also puts forward new requirements for the application of the criminal law to mitigate the punishment,and this is also an important reason for the need to pay attention to the mitigating circumstances in the criminal law.Specifically,first of all,the implementation of individualization of penalties determines the need to apply different plots in sentencing;secondly,the implementation of individualized penalties opposes the unification of the results of sentencing in sentencing.Third,the inevitable logic of the requirements for the balance of crimes.As an ideological concept,the balance of crime and punishment is based on the instinct of human beings' aspirational reciprocity.The human pursuit of the concept of justice is eternal.From the logic of retribution punishment,the balance of crimes and punishments always carries the idea of retribution,but whether it is equal retributionism or equal retributionism,the actual harm caused by crime and the final punishment are not only in terms of weight,but also There is also a corresponding relationship in nature.Regarding the status of the balance of crimes,there are different opinions in our country.Some scholars regard it as one of the basic principles of criminal law.Some scholars only regard it as an important principle of sentencing.However,judging from the specific provisions of China's criminal law,the requirements of criminal law in China for criminal punishment are mainly reflected in the implementation and implementation of the principle of adapting to crimes and punishments.Not only in the legislation,but also in the judiciary.The joint point of the application of the penalty balance and the mitigating circumstances is the application of the penalty,that is,the use of different plots in the judicial application to achieve the purpose of balancing the crime.First of all,it is necessary to balance the balance between guilt and criminal responsibility by reducing the punishment of the plot;secondly,it is necessary to apply the mitigation penalty to adjust the balance between the amount of crime and the amount of punishment.Fourth,the practice of case justice needs to be oriented.Justice is not only the value goal pursued by law,but also the eternal value pursuit of mankind.Justice is the standard for human beings to judge things.Under the background of different historical eras,human understanding and pursuit of justice are different,but the yearning for justice has not changed.Regardless of the understanding of justice,judicial justice ultimately depends on the need to achieve justice through a series of fair judgments.Therefore,how to achieve case justice is the goal that the judiciary has always pursued.The application of mitigating circumstances is reflected in the following two aspects: First,the application of mitigating circumstances is essentially to correct the unfairness of sentencing strictly following the original criminal law,in order to solve the problem.Achieving the value objective of case justice,and applying it in the case of a statutory or discretionary mitigating circumstances in a specific case;secondly,although there may be a dilemma in the analysis of the case,according to the public and The direction of public opinion,to achieve justice in the case,needs to achieve the goal by reducing the application of the punishment.Chapter? Judicial application of statutory mitigating circumstances.Relatively speaking,for the statutory mitigating circumstances,because of its clear prescriptive nature,there is not a big problem for its application.With this clarity as a guide,there will be suspicions that can overcome the principle of violation of the law of crime.However,due to the ambiguity,high generality and appropriate advancement of legislative language,it is reasonable to lack new regulations on new problems and new situations in judicial practice.Therefore,even if it is a relatively clear statutory mitigating circumstances,if the relevant basic issues cannot be explained clearly,it will naturally face the dilemma of judicial application,such as the stipulation of "below statutory penalty" and the "next sentencing range".Refers to the dilemma caused by unclear and other criminal law terms;the applicable dilemma caused by the controversy of the sentencing benchmark;the judicial application dilemma manifested by the multi-functional plot.However,if you want to apply the correct mitigating circumstances,you should also follow the "prohibition of repeated evaluation principles" and "prohibition of the principle of responsibility." First,the issue of determining the statutory mitigating circumstances and the sentencing benchmark.The so-called “sentencing penalty” refers to the method of how to handle the applicable penalty when there are reasons such as weight,lightness and mitigation.Therefore,from this perspective,the sentencing benchmark is the general principle and method to guide the application of the sentencing circumstances,and belongs to the core content of the sentencing theory.Obviously,for the application of mitigating circumstances,although Article 63 of the Criminal Law stipulates this,the root cause of the return problem is how to deal with the problem of how to mitigate the punishment in the final discretion of the penalty.The judiciary cannot evade or circumvent this stage when it is necessary to deal with the penalty of the Criminal Division.For the time being,both the scholars outside the domain and the scholars in the country regard the "point theory" or the "theory of the theory" as the basis of the argument.However,with the current development of the theory,the choice between the "point theory" and the "width theory" is not an irrelevant relationship.Therefore,the determination of the sentencing benchmark can be combined with the "point theory" and the "width theory." Because in judicial practice,whether it is based on point theory or based on the theory of amplitude,there is no big difference.Therefore,the two only explain the difference of methods,not the actual opposition.Therefore,the author believes that the "point theory" and "width theory" can be used in different stages.In concrete terms,the "point theory" can be applied to the legislative stage,because in legislation,it is necessary to establish a specific scale to provide a standard for penalties;and the "theory of the theory" can be applied to the judicial stage because As far as the determination of the liability penalty is concerned,it is not only objectively difficult to determine the precise point,but also subjectively speaking,the limitation of cognitive ability is difficult to determine.The idea of combining the two has also been greatly developed.After clarifying the relevant concepts and values of the sentencing benchmark,it is necessary to determine the methodological approach to the sentencing benchmark.After clarifying the relevant concepts and values of the sentencing benchmark,it is necessary to determine the methodological approach to the sentencing benchmark.According to the provisions of the Criminal Law of China,crime can be divided into two major types: one is the type of common crime;the other is the type of crime other than common crime.For common types of crime,the sentencing benchmark can be determined by clearing the benchmark penalty.For offences other than common crimes,the sentencing benchmark for other offences can be established based on empiricism.Second,according to the provisions of the first half of Article 63 of the Criminal Law of our country,“If a criminal has the mitigating circumstances prescribed in this Law,he shall be sentenced to a penalty within the statutory sentence.” If it can be determined that the case is a statutory mitigating circumstances If so,then it involves how to understand the "legal punishment".Specifically,the provisions of Article 63 of the Criminal Law of China have two levels of meaning below the statutory penalty.Therefore,the promotion of the understanding of the hierarchy theory undoubtedly meets the specific provisions of China's criminal law.Third,in order to avoid the arbitrary application of mitigating punishment,in the revision of the criminal law,if the “several sentencing range specified in this Law is officially added,the penalty shall be imposed within the next sentencing range of the legal quantitative penalty range”.Through the discussion,the clear meaning of “below the statutory penalty” has been basically clarified.Therefore,the understanding of the “next sentencing penalty” should also be clarified under the guidance of the sub-level theory of “below statutory punishment”.It can provide the correct treatment for the mitigation of the minimum statutory penalty of “regulation”,“deprivation of political rights” and “penalty” or “confiscation of property”.Third,the handling of multi-functional plots has always been a difficult problem in China's criminal law.According to the provisions of China's criminal law,and according to the nature of each plot,the competing of the multi-functional statutory punishment in the criminal law can be divided into the co-opetition of the same statutory punishment and the competition of the reverse statutory punishment.Two basic types.For each case of competing with the mitigating circumstances,the final determination should be made according to the specific situation.Specifically,when competing in the same statutory penalty case,when competing for the statutory mitigating circumstances,the situation should be based on the social harmfulness of the criminal act and the personal danger,combined with the statutory penalty to be dealt with.Comprehensive judgment,if the behavior of the perpetrator is heavier and the personal danger is greater,then it should be more appropriate to sentence the sentence within the “next sentence”.For the competition between the statutory mitigating circumstances and the mitigating circumstances,it should reflect the order of application.This article argues that the application of the mitigating circumstances here takes precedence over the application of the mitigating circumstances;The punishment case is still reflected from the light punishment case at the time of sentencing.Therefore,the correct treatment plan can be amended to: First,the benchmark sentence should be determined according to the facts of the case.Secondly,according to the mitigating circumstances of the case and according to the specific calculation rules(if it exists in the Sentencing Guidance Opinion),the extent of the mitigation is determined and a corresponding evaluation is made.Finally,according to the force of the light punishment,and then the “next sentencing range” determined in the statutory mitigating circumstances,the scope of the penalty should be considered,but no matter how lightly punished,it should not be lower than the mitigation penalty.The minimum penalty limit for the “next sentencing range” determined by the plot.The application of the reverse statutory penalty case should be handled in a combination of qualitative and quantitative methods.In the process of sentencing,the qualitative analysis method has always been in the main position,but on the basis of qualitative,it is also necessary to consider quantitative analysis methods,and then determine the starting penalty for sentencing and the declaration of punishment.Chapter? The judicial application of the mitigating circumstances.It is obvious from its name that discretionary mitigating circumstances are different from statutory punitive circumstances.Since the statutory mitigating circumstances are clearly defined by the criminal law,there is no difficulty in understanding,but for discretionary mitigation.In terms of punishment,it is necessary not only to clarify its concept,but also to distinguish it from the statutory mitigating circumstances in judicial practice,so that it can be truly applied in judicial practice.Obviously,discretionary mitigating circumstances are juxtaposed with statutory mitigating circumstances and are a type of mitigating circumstances.Therefore,the discretionary mitigating circumstances should have the overall characteristics of mitigating circumstances,but as a special type,it is more specific.How to apply the discretionary mitigating circumstances,there are drawbacks such as “the scope of application is difficult to define,the scope of application is too narrow,and there is risk of abuse”.The primary issue at the level of discretionary mitigation and punishment is the understanding and application of the “special circumstances” of the case.To a large extent,this is also the main crux of the application of this article.Due to the limitations of the history of the earlier period,the definition of "special circumstances" in our case is also a drawback with a narrow scope.For the time being,the "special circumstances" in this article should also be understood in a broader sense and should not be limited to the above explained position.Even if the scope of the “special circumstances” of the case from the normative level is clearly defined,it does not mean that the delineation of the scope of discretionary mitigating circumstances can be fully controlled,and to a large extent,the scope of the discretionary mitigating circumstances needs to be relied upon.Certain factors are extracted.Therefore,based on the position of judicial practice,this article mainly extracts the circumstances of discretionary mitigation from four aspects.That is,although the scope of the "special circumstances" of the case from the normative level is limited to a certain extent,it does not mean that the delineation of the scope of discretionary mitigating circumstances can be completely controlled.To a large extent,the discretionary mitigating circumstances are also needed.The scope depends on certain factors to extract.That is,"one of the substantive standards-the size of social harm;the second standard of physical standards-the size of personal danger;the standard of value-the expectation of society;the standard of form-does not violate the provisions of the criminal law." In terms of mitigating circumstances,it is necessary to adhere to the principle of “applicable universalization” and “the principle of comprehensive consideration” in the application of judicial application;and how to understand the relationship with “the next sentencing range” in the process of application also becomes Discretionary important limits for the judicial application of mitigating circumstances.In many cases,even if there is a discretionary mitigating circumstances,if the balance of penalties can be achieved within the “next sentencing range” and the requirements of criminal law justice are met,then there is no need to reduce the multiple sentencing ranges.If it is,there is a suspicion of violating the statutory principle of the crime.Only in a very small number of cases,if it is unable to meet the requirements of the principle of adapting to the crime in the "next sentencing range",then it is really necessary to reduce the number of sentencing for the final interruption.In the absence of detailed provisions on discretionary mitigating circumstances,the discretionary mitigating circumstances can be typed.For the time being,it is especially necessary.Because "can overcome the shortcomings of making up the legislation;it can restrain the discretion of the judicial organs: it can set standards for the subsequent judicial application." A total of 53 discretionary mitigating circumstances were collected through the Chinese refereeing documents network and online collection methods.After statistical analysis of the 53 discretionary mitigating circumstances approved by the Supreme People's Court of China,it was found that At the same time of mitigating the plot,it is necessary to summarize the relevant plot types.The top rankings are social harm,subjective viciousness of the offender,criminal confession,victim's fault,the victim's special constitution,and the victim's understanding.For each case,it is necessary to clarify the requirements for its establishment in order to be accurate and applicable.For the status quo that has not yet been exhausted,the following ways can be taken: First,in strict accordance with the legislative basis and legislative spirit of Article 63,paragraph 2 of the Criminal Law of our country,whether the circumstances of the case as a whole determine whether it meets the relevant provisions Second,according to the four criteria for extracting discretionary mitigating circumstances determined in this paper,whether the circumstances of the case can be extracted as discretionary mitigating circumstances;third,after extracting the discretionary mitigating circumstances,It is necessary to implement the procedures approved by the Supreme People's Court.That is to say,only after the final approval of the Supreme People's Court can the final determination of the case be a mitigating circumstances.Chapter? Procedures for the mitigation of the punishment and the application of justice.As far as the application of the mitigating circumstances is concerned,it involves not only substantive issues,but also procedural issues.In the category of jurisprudence,the law can be divided into the law embodying procedural justice and the law embodying substantive justice.However,whether it is substantive justice or procedural justice,it is an important part of society's ability to achieve fairness and justice.It is the goal pursued by human society.Since there is no difference in the nature of the statutory mitigating circumstances and the discretionary mitigating circumstances,the application of the two is more manifested as the overlap of the applicable procedures in judicial practice,but also shows certain differences..In the case of coincidence,the issues involved in the legal mitigating circumstances are both present in the application of the discretionary circumstances,and there are additional applicable procedures in the context of discretionary mitigating circumstances.However,as far as the common problem is concerned,there are mainly the following problems: First,the relevant stakeholders have insufficient participation in judicial practice.Second,there is also a "one-word" situation for the application of mitigating circumstances.It is not possible to fully debate this.Thirdly,for the mitigating circumstances,it is not just the defendant's claim.When the procuratorial organ finds that there is a mitigating circumstances,it also needs to propose the application of the mitigating circumstances.Therefore,for the above problems,it is necessary to "establish the concept of program participation;strengthen the mitigation and punishment section;improve the sentencing suggestion mechanism for mitigating the punishment situation;establish a procuratorial organ to supervise the error correction mechanism;and deepen the judgment of the judgment document." The question of personality applicable to the plot refers specifically to the issue of “the discretionary mitigating circumstances stipulated in Article 63,paragraph 2 of the Criminal Law of China,which needs to be submitted to the highest people for approval before it can be effective”.In view of the problem of the application procedure of the mitigating circumstances,it is necessary to improve it in the judicial practice.At present,the academic community also provides more programs.This paper believes that the establishment of discretionary mitigating circumstances should adhere to the principle of streamlining and convenience,and the economic goal should be met in the ultimate goal.Therefore,it is possible to “decentralize the discretionary mitigating circumstances to the High People's Court and the High People's Court constitutes a collegiate bench;if it is a second instance by the High People's Court and involves a case where the mitigating circumstances are applicable It shall be reported to the Supreme People's Court for approval."...