Study On The Discretionary Circumstances Of Sentencing

Sentencing circumstances is important factor for criminal penalty, as the subjective and objective fact which can demonstrate the social harmfulness of act and the dangerousness of the person and the degree of the dangerousness. Compared with the legally-prescribed circumstances of sentencing, the discretionary circumstances of sentencing also is a indispensable significant factor for sentencing.According to the theory of unification of retribution and utility on criminal penalty, retribution should restrict the top limit of utility. That is when we distribute the criminal penalty, we shouldn't ignore the seriousness of the crime on the view of utility and the need of preventing crime. If we take the discretionary heavier circumstances of sentencing as the factor of sentencing, it not only run counter to the principle of a legally prescribed punishment for a specified crime, but also let the beneficial result of criminal penalty become unfair, because its main objective is to achieve the prevention. Moreover, it can't achieve this objective actually. Therefore, it is wrong and harmful to take the discretionary heavier circumstances of sentencing. That is to say, we only can take the discretionary lighter circumstances of sentencing as the factor of sentencing. To operate the discretionary circumstances of sentencing precisely, we should hold the following three principles: abide by statutory buctrine, pro defendente doctrine, principle of reasonable ambiguity. The article states on the above mentioned three principles, then on this base, it brings out several suggestions on how to operate the discretionary circumstances of sentencing, in order to provide some references to the practice of our legislation and justice.