On The Unbalance Of Sentencing Discretion And Its Precautionary Measurements

The unbalance of sentencing discretion is quite common in the field of criminal judgment. The purpose of study on the unbalance of sentencing discretion and its precautionary measurements is to well understand theoretically its essence, pernicious manifestations and formative cause, to find out an effective way to conquer it and reach balance on the sentencing discretion, and then coming true judicial fair. Yet there are no identical views on its theory in nowadays domestic and abroad circle. From an angle of positivism, and from the domestic present situation, the author re-stipulates the notion of the unbalance of sentencing discretion by citing the theory of jurisprudence and criminal law. In the meantime, the article points out its intrinsic characteristics and elaborates the value of precaution against it from positive and negative sides. On the basis, the author, making use of the systematic control theory, not only makes a conclusion that the direction and aim of precaution is to make a balance in the discretionary action of sentencing, but also gives a detailed description on the theoretical basis and judicial discretionary method. Finally, a whole theory construction of precautionary measurements against unbalance of sentencing discretion is been put forward from three aspects, that is precaution before the trial, precaution in the trial and precaution after the trail.