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Study On The Sentencing Standardization Reform In China

Posted on:2021-12-31Degree:DoctorType:Dissertation
Country:ChinaCandidate:S X CuiFull Text:PDF
GTID:1486306290968529Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The importance of conviction and sentencing is equally.As an important part of criminal trial,the result of sentencing and the appropriateness of sentencing procedure directly reflect the quality of criminal trial and the realization of the purpose of punishment,which is the necessary requirement to regulate judicial sentencing activities and the proper meaning of a sound and fair,efficient and clean socialist judicial system.After more than ten years,China's sentencing standardization reform has overcome difficulties,in the establishment of scientific sentencing methods and sentencing steps,regulate the exercise of judge discretion,enhance the operability and predictability of sentencing practice,build a relatively independent sentencing procedure,reduce the differences in sentencing,and improve the quality of the judgment and judicial authority and so on.However,in the face of the new requirements of the socialist rule of law system with Chinese characteristics,on the basis of affirming the "local experience" of the sentencing standardization reform in our China,we also need to face up to the many obstacles existing in the in-depth stage of the current sentencing standardization reform.Based on the existing obstacles of China's sentencing standardization reform,this article combined with the desirable experience of extraterritorial national and regional sentencing reform,aims to promote the reform gets steady progress.This paper is divided into six chapters besides introduction and conclusion.The first chapter is an overview of the sentencing standardization reform in our China.First of all,we need to figure out the background and the implication of the sentencing standardization as well as reform,and then combined with the judicial practice to examine the situation,the development of China's sentencing standardization reform to comb the veins,and finally on this basis to condense the reform experience of the various stages.As an important part of litigation that is vital to the criminal justice,sentencing is of great significance.In view of the increasingly significant sentencing deviation,the lagging "estimated pile" sentencing method and the strong expectation of the public for a fair and transparent sentencing procedure,the proposition of sentencing standardization has been conceived and developed.With the rooting of standardized sentencing thought,the sentencing standardization reform is to be deployed by standardizing the discretion of judges,perfecting sentencing procedures,and promoting the fairness and balance of sentencing.China's sentencing standardization reform has gone through four stages: exploring trial and error,local piloting,comprehensive implementation and in-depth promotion,establishing the sentencing method of "combination of qualitative and quantitative".It also preliminary forms the collaborative development pattern of substantive and procedural norms,strengthen the understanding of the dialectical unity relationship between the sentencing standardization and the discretion of punishment,the unification of sentencing and the individualization of punishments at the theoretical and practical levels.The second chapter is the theoretical discussion of the sentencing standardization reform in China.First of all,the theory of the purpose of punishment and the theory of the equilibrium of criminal punishment in carrying out the sentencing standardization reform in our country,followed by an explanation of the legal concept that runs through the beginning and end of the reform.Second,the purpose of the penalty refer to what kind of penalty purpose should judge based on,is the prerequisite to achieve the fair sentence.The third is the legislative and judicial realization of the theory of equalization of crime and punishment.Then,the theory of sentencing standardization reform includes the idea of justice embodying the basic mechanism of reform,the harmonious idea of reconciling the demands of all parties,the concept of efficiency reflecting the effectiveness of reform work and the concept of human rights that highlight severity of justice.Finally,the functional inquiry of the sentencing standardization reform includes the elimination of unfounded sentencing deviation,the cultivation of standardized sentencing thought,the implementation of the criminal policy of leniency and strictness,and the perfection of the relatively independent sentencing procedure.The third chapter is the existing obstacle of the sentencing standardization reform in our country.This includes the obstacles to reform at the level of guiding philosophy,leadership mechanism,rule-making and procedural extension.Although the theory of resin and the theory of preventive punishment have gradually reached a relatively stable state of coexistence after a long battle,the judicial field under the present situation of our country has placed too much emphasis on "pre-punishment" and neglected the concept of rehabilitation.Secondly,the Supreme People's Court Criminal Trial Division can barely handle this complicated and time-consuming reform project,resulting in the embarrassing dilemma between "central policy shift" and "local experience".Again,the level of the rules system,the detailed and complicated sentencing rules inevitably make judge confused,coupled with the existence of the multi-meaning conflict between the sentencing norms,make the judge tired to calculate the starting point of the sentence of each crime and the increase and decrease of the benchmark sentence in each case.Finally,the procedural extension level,the abnormally high adoption rate of sentencing recommendations not only arouses the value tendency of prosecutors,but also may lead to the weakness or even invalidity of the sentencing defense.Besides,the procedural mechanism to promote the fair and proper conduct of judicial activities by judges is still inadequate in terms of normative basis,implementation mode and theoretical support.The current invocation of the poor effect of the guiding case system also triggered the theoretical and practical circles on the construction of sentencing jurisprudence system.The fourth chapter is about how to improve the concept of sentencing standardization reform in China.This part first combs and evaluates the evolution of the guiding concept of extraterritorial national and regional sentencing reform.First of all,as an example,the current American sentencing reform is committed to simplifying the sentencing norms and protecting the discretion of judges.Besides,the United Kingdom gradually formed a sentencing mode named "quantitative sentencing pattern".The civil law system countries,represented by Germany,gradually develop "Spielraumtheories",so that judges can determine the range of punishment appropriate to the punishment of the criminal penalty within the statutory penalty.For Japan,the guiding concept of sentencing reform is mainly reflected in the long development and eventual formation of the market constraint model.In view of the experience of the guidance concept of extraterritorial countries and regions,China's sentencing standardization reform should abandon the weakness of pure retributionalism as well as utilitarianism,and form the concept of "retributive as the main,prevention as a supplement" of the concept of penal purpose.Among them,in highlighting the requirements of substantive justice based on resin,we also need to take into account the individualization requirements of special prevention as a supplement to the punishment.The fifth chapter is how to improve our China's sentencing standardization reform entity.First of all,the desirable experience at the substantive level of extraterritorial national and regional sentencing reform is analyzed,including the advantages of the "independent sentencing commission" in Common Law countries and German's "no sentencing guidelines" reform mode.Then discusses the entity side figurative improvement measures in China's sentencing standardization reform in-depth promotion is necessary to set up a full-time leading agency for the sentencing standardization reform in China,which is reflected in the objective needs of formulating and revising sentencing guidance,integrating sentencing information and empirical research,obtaining stable financial guarantee and carrying out periodic sentencing training.Finally,at the level of optimizing the setting of sentencing rules,we should not only improve the sentencing rules based on the timeliness and adaptability,highlight their fit with the basic principles of sentencing law and the law of sentencing,but also focus on the improvement of judicial efficiency,moderately simplify the sentencing rules and so forth.The sixth chapter is how to improve our sentencing standardization reform procedure.The extraterritorial national and regional sentencing reform process in the process of reasonable experience of the procedural aspects of the review and discussion,including "pre-sentencing report","sentencing hearing procedure" and "sentencing data system" in the United States,"appeal review" in German and "judge system" in Japan.Hence,we need to optimize the system of sentencing recommendations in China,the gradual escalation of sentencing theory,the model creation of sentencing hearings,the establishment of artificial intelligence criminal sentencing auxiliary system and other aspects,step by step combing and perfecting the specific measures on the side of China's sentencing standardization reform procedures.In addition,we should pay special attention to the comprehensiveness of sentencing information and the sentencing recommendation proposed by the prosecution.At the same time,to prevent functional positioning and technical delay and other risks,the use of intelligent information technology to assist judges in sentencing.To standardize the form of its participation in sentencing and to put forward the content of sentencing opinions,but also to explore the operational level of the "quasi-precedent" sentencing reference system of the construction of possible according to the needs of criminal trials at all regions and levels of the trial.Finally,we should improve the system of sentencing procedures involving many parties,expand the participation of society in sentencing practice,and improve the effectiveness of sentencing defense.
Keywords/Search Tags:The Sentencing Standardization Reform, Sentencing Balance, Penalty Purpose, Sentencing Discretion System, Sentencing Procedure
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