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Study On Application Of The Institution Of Combined Punishment For Several Crimes

Posted on:2020-03-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z BaFull Text:PDF
GTID:1366330602955711Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
Sentencing is an abbreviation of criminal law theory.As an integral part of the sentencing system,the system of combined punishment for several crimes has both theoretical and practical aspects.On the one hand,it is rooted in the theory of criminal law,related to the implementation of the principle of criminal law that punishment fits the crime,the realization of the purpose of punishment that retribution restricts prevention and the setting of types of principal and supplementary punishments,etc.;on the other one,it is applicable to judicial practice,directly pointing to the determination of punishments for the defendants in individual cases and affecting the degree of individualization of punishments.Moreover,it is related to the quality of judicial credibility.Compared with the sentencing of the defendant who commits only one crime,the sentencing of the defendant who commits several crimes is more technical and flexible.Therefore,there is natural close relationship between the system of combined punishment for several crimes and judicial discretion.Judicial discretion always affects the sensitive nerves of the people.With the deepening of the reform of sentencing standardization led by the Supreme People's Court,more and more crimes have been included.People's worries about judicial personnel's excessive sentencing discretion have been alleviated,but the concurrent punishment for several crimes is the secondary sentencing after the sentencing of each crime has been declared.Due to the unclear legal provisions and the different circumstances of each crime,it is difficult to make relatively definite numerical calculation in accordance with the sentencing guidelines formulated by the Supreme People's Court,as the determination of the sentencing of each crime can be made.Therefore,the determination of punishment for the defendant who commits several crimes is still space of sentencing of punishment which is not well known to the outside world,has greater discretion and is less affected by the reform of sentencing standardization.Therefore,people turn their attention to the formations of combined punishment for several crimes.If the general public's concern about the system of combined punishment for several crimes is based on the natural defensive psychology and the thinking inertia of distrust,then the author,as a front-line judicial officer,is concerned about the application of combined punishment for several crimes,because there are some confusion and application problems in the trial work: whether the existing legal provisions of combined punishment for several crimes can be guaranteed or not.Whether the judicial application of combined punishment for several crimes achieves the maximum individualization of punishment for the defendant,what is the basis for the aggravation of the restriction of combined punishment for several crimes,whether there exists duplicate evaluation between the discretion basis of punishment and the determination basis of declared punishment for each crime,whether there is crossapplication of the judicial application of combined punishment for several crimes and the rules of criminal procedure,how to ensure the judicial application of combined punishment for several crimes,implement the principle of criminal law that punishment fits the crime,and achieve the purpose of punishment that retribution restricts prevention.As mentioned above,as a punishment discretion system,combined punishment for several crimes is directly applicable to case handling,and is of strong practice.Therefore,in order to review the present situation of the application of combined punishment for several crimes in our country and provide a way to improve the system of combined punishment for several crimes,we must adhere to the problemoriented approach,take the case handling process and the process of punishment discretion as the main line,start with a great number of cases,not only analyze the judgment documents as the carrier of the judgment results,but also pay attention to the judicial personnel's psychological activities in the application of combined punishment for several crimes,show the operation mode of the system of combined punishment for several crimes in judicial practice,so as to systematically sort out the problems in the application of combined punishment for several crimes in China and try to put forward the corresponding countermeasures.The effective application of combined punishment for several crimes cannot be separated from the precise understanding of the theoretical value of combined punishment for several crimes by judicial personnel and the scientific grasping of relevant legal provisions.This paper starts with the elaboration of the basic theory of combined punishment for several crimes,and focuses on the analysis of the criminal value of combined punishment for several crimes.It is found that the system of combined punishment for several crimes conforms to the principle that punishment fits the crime,and meets the purpose of punishment that retribution restricts prevention.Based on this evaluation standard,it examines the legal provisions of combined punishment for several crimes in China and finds some problems in the existing legal provisions such as omissions in legislation,unclear provisions,inconsistent system,and incomplete implementation of the principle that punishment fits the crime.Static legal provisions will be tested in practice through dynamic judicial application.With the help of empirical research methods,this paper makes a thorough review of the application status of combined punishment for several crimes through the quantitative analysis of the judgments of second instance and retrial in the past five years and qualitative study of 15 judicial personnel at the first line.It is found that in the process of judicial application of combined punishment for several crimes,there are some problems such as inconsistent criteria for judging the number of crimes,complicated basis for deciding sentences,confusion in the application of principal punishment and supplementary punishment,divergence in understanding of the discovery of omissions and new crimes,aggravated punishment for concealing omissions,violation of the principle of no added supplementary punishment on appeal,no retrial for omission,application of suspension of sentence and commutation of sentence for omissions,etc.Although the judgment of combined punishment for several crimes can reproduce judicial personnel's sentencing process of determined punishment,to a great extent,considering the limitation of words to express meanings,we think that judicial personnel's discretion process can not be fully disclosed through judicial documents.Therefore,it is necessary to observe their sentencing motivation and inner drive through interviews with the first-line judicial personnel.This paper is an empirical study on the application of combined punishment for several crimes in the interaction of qualitative research and quantitative analysis.The above research can prove that in order to improve the scientific and effective application of combined punishment for several crimes in our country,we should implement the principle of criminal law that punishment fits the crime,achieve the purpose of punishment that retribution restricts prevention,and realize the maximum individualization of punishment.First of all,we should determine the fundamental role of the holistic concepts in the formation of sentencing.We should recognize that sentencing experience and judicial intuition are the logical starting point for judicial personnel to decide sentencing.Second,the substantive renewal and reconstruction of the rules of combined punishment for several crimes includes the structural adjustment of the principal punishment and secondary punishment,the improvement of the system of detection of omissions and new crimes,the reasonable control of the suspension of punishment for several crimes,and the building of re-stratification of the cancellation system of commutation of sentences.Finally,the possible arbitrariness in the application of combined punishment for several crimes is restricted from the procedure,including incorporating sentencing of determined punishment to relatively independent sentencing procedures,emphasizing sentencing reasoning for sentencing of determined punishment,and preventing the occurrence of retrial cases of omission of sentencing.
Keywords/Search Tags:Combined punishment for several crimes, Judicial application, Legal provisions, Judgment process, Empirical research, Path perfection
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